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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: SHIROMANI GURDWARA PRABANDHAK COMMITTEE & ORS

DATE OF JUDGMENT05/08/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SINGH, K.N. (J)

CITATION:  1986 SCR  (3) 472        1986 SCC  (3) 600  JT 1986   287            1986 SCALE  (2)208

ACT:      Transfer of  suit-Power of  Supreme Court  to  transfer suit for  the ends of justice-Whether suit, claiming damages of R.S..  1,000 crores  for  causing  loss  to  movable  and immovable properties  of the  various Gurdwaras  against the petitioners  is  a  fit  case  for  transfer-Code  of  Civil Procedure section 25, explained.

HEADNOTE:      Respondents  I   and  2   filed  a   suit  against  the petitioners/defendants claiming  damages of  Rs.1000  crores from  the  petitioners  for  causing  loss  to  movable  and immovable  properties   of  the   various  Gurdwaras   being administered and  managed by  respondent  No.  1  under  the provisions of the Punjab Sikh Gurdwaras Act, 1925 during the period from June to September 84. They also sought mandatory injunction directing  the petitioners  and  their  principal functionaries to  tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and  also for  causing deep  sense of  injury to the honour  and   self-respect  of  Sikhs  who  are  law-abiding citizens. Besides, an application to sue as indigent persons under order  33, Rule l and 2 of the Code of Civil Procedure was filed.  It was  alleged in  the plaint that on 3rd June, 1984 the  Martyrdom day  of Shri  Guru Arjun  Devji, when  a large number  of devotees  came to the Golden Temple complex at Amritsar  to commemorate  the said  occasion the  various units of  the Armed  Forces  under  the  employment  of  the petitioners as  well as Police units under the employment of petitioners  and   the  Government  of  Punjab  with  malice launched an attack in the Golden temple complex by resort to indiscriminate and  barbaric  firing.  The  defence  of  the petitioners was  that it  was an  Act of State necessary for the security  and integrity of the State and that the action taken was  an exercise  of sovereign  power  in  respect  of sovereign  acts.  The  petitioners  in  view  of  the  extra ordinary situation  prevailing in  the State  of  Punjab  in general and  in Amritsar  in particular  moved  the  present transfer petition  under section  25 of  the Code  of  Civil Procedure, aver- 473 ring that  it is  not possible  to have  a fair trial of the

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case in  Amritsar or other parts of Punjab since the suit is an unusual  one and  tiled at a critical time in Punjab. The question  is  whether  the  ends  of  justice  requires  the transfer of  the suit  from the State of Punjab to any other State.      Allowing the petition, the Court, ^      HELD: 1.  The power  of the Supreme Court to transfer a suit or  proceeding from  one State  to another  State is  a power which  should be  used with circumspection and caution but if the ends of justice so demand in an appropriate case, the Court  should not  hesitate to  act. One  of the highest principles in  the administration  of law  is  that  justice should not  only to  be done  but should be seen to be done. [476D-E;C]      2. In  this case,  in view of the nature of allegations regarding some  of the  respondents  who  have  been  added. strong feelings  are likely  to be roused in some section of community. In such an atmosphere to meet the ends of justice it would  be desirable  to have  the case  transferred to  a calmer and quieter atmosphere. Justice would be done in such a way. To contend that no extra ordinary atmosphere exist in Punjab would  be to  contend for  an unreality.  The suit is also  unusual  and  sensitive  and  the  time  is  critical. Therefore, the  Supreme Court  should act by transfering the case outside  the State  of  Punjab  to  meet  the  ends  of justice. That is an absolute imperative in this case. [476D- F]      G.X. Francis  & ors.  v. Banke Bihari Singh & Anr., AIR 1958 SC  309; Hazara  Singh Gill  v. The  State  of  Punjab, [1964] (4) SCR l; and State of Assam v. Atul Vohra, Transfer Petition No. 21/80 referred to.      (The Court directed the case to be transferred to Delhi High Court  to be  tried by  a learned  Single Judge  on the original side.) [477D]

JUDGMENT:      CIVIL ORIGINAL. JURISDICTION: Transfer Petition No. 212 of 1986      Under Section 25 of the Code of Civil Procedure 1908.      M.K. Banerji,  Solicitor General,  A.K.  Ganguli,  R.D. Agar vala, and Miss Sushma Relhan for the Petitioners.      Hardev Singh,  S.S. Sood,  Bishamber Lal and R.S. Sodhi for the Respondents. 474      The Judgement of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  is  an  application  for transfer under  Section 25  of the  Code of  Civil Procedure filed  by   Union  of  India  seeking  transfer  of  a  suit instituted before the Court of Senior Sub Judge, Amritsar by Respondents Nos.  1 and 2 i.e. Shiromani Gurdwara Prabandhak Committee,  Amritsar   and  Sardar  Gurcharan  Singh  Tohra, President,   Shiromani    Gurdwara   Prabandhak   Committee, Amritsar. The  suit claims  damages of  Rs.1,000 Crores  for causing loss  to movable  and immovable  properties  of  the various Gurdwaras  being administered  and  managed  by  the Plaintiff No.  1 under  the provisions  of the  Punjab  Sikh Gurdwaras  Act,   1925,  during  the  period  from  June  to September 1984, by the defendants, their employees, servants and agents  by making a deliberate, unprovoked, unwarranted, unannounced, wanton  and catastrophic  attack by the various armed servants  and  employees  of  the  defendants  on  the Gurdwaras in  the Golden  Temple, Amritsar and various other

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Gurdwaras in  the State  of Punjab. It also sought mandatory injunction directing  the  defendants  and  their  principal functionaries to  tender unqualified apology before the Sikh Sangat for causing mental, sentimental, social and spiritual setback and  also for  causing deep  sense of  injury to the honour  and   self-respect  of  Sikhs  who  are  law-abiding citizens. There  was also an application under order 33 Rule 1 &  2 of  the Code of Civil Procedure for permission of the Court to sue the petitioners and the Respondent No. 3 herein as indigent persons      After receiving the summons, the Union of India made an application opposing  the application under order 33 Rules 1 & 2  made by  the Respondents No. 1 & 2 and further alleging that it  did not  disclose any  cause of  action against the petitioners. There  was an  amendment application  which was allowed in  spite of  opposition by  the Union  of India and additions were made of Respondents Nos 4 to 37, some of them are  Ministers,   officers  and  Members  of  Armed  Forces, including  the   present  Chief   of  the   Army  for  their participation in what is known as ’operation Blue Star’ from June, 1984  to September,  1984. It  is not necessary to set out in detail all the allegations made in the Plaint. In the Plaint it  has been  alleged  that  the  Shiromani  Gurdwara Prabandhak Committee is a statutory organisation established under the  provision of  the Punjab  Sikh Gurdwara Act 1925, for the  purpose of  administration and managing and looking after the  affairs and property of the Sikh Gurdwara. On 3rd June, 1984,  it is  alleged in  the Plaint,  which  was  the Martyrdom day of Shri Guru Arjun Devji, when 475 a large number of devotees came to the Golden temple complex at Amritsar  to commemorate  the said  occasion the  various units of  the Armed Forces under the employment of the Union of India  as well Police units under the employment of Union of India  and the Government of Punjab launched an attack in the Golden temple complex by indiscriminate barbaric firing. It was  alleged that  the same  was  maliciously  done.  The defence of Union of India, as it appear from the petition is that it  was an  act of State necessary for the security and integrity of the State. The action taken, it is claimed, was an exercise of sovereign power in respect of sovereign acts.      Indubitably, this is an unusual suit at a critical time in Punjab.  The basis  of the  Transfer Petition  is that an extraordinary situation  prevails in  the State of Punjab in general and  in Amritsar in particular for the trial of suit of this  nature. There  has been  communal  tension  between different communities  as well as between different sections of the  same community.  Anything connected  with the Golden Temple is  an extremely sensitive matter capable of arousing deep passions.  It is,  therefore, stated  that  it  is  not possible to  have a  fair trial  of the  case in Amritsar or other parts  of Punjab  and it  is necessary  that the  case should be tried in a calm and quite atmosphere.      We have  noted the  nature of  the allegations and have heard learned  counsel for  the parties,  where it  has been submitted on  behalf of  the respondents  that there  was no communal tension as such in the State of Punjab and that the judicial administration  in Punjab  is functioning  normally and it  would be  possible to  meet the  ends of  justice in Punjab. It  is true,  that the  judicial  administration  is functioning normally  in Punjab  and it cannot be reasonably apprehended that  the justice  would  not  be  done  by  the judiciary of  Punjab,  but  what  is  stated  is  reasonable apprehension of  the respondent  Union of India and the said added respondents  that in view of nature of the allegations

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and their  consequences on the feelings of the sentiments of some sections of Sikh Community, justice may not be done. It is not  denied that  certain sections  of the Sikh community felt very  strongly on  the operation  of Blue  Star,  their feelings are bound further to be hurt when the trial of this case goes on.      This Court had occasion to deal with this aspect of the matter in  G.X. Francis  & ors  v. Banke Bihari Singh & Anr. A.I.R. 1958  S.C. 309  where it was a case for transfer from Madhya Pradesh.  Justice Vivian Bose observed that there was ground for transfer from the area 476 because of  the  bitterness  of  the  communal  feeling  and bitterness of  the atmosphere.  It was  reiterated that  the Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among the section  of the  community, and  there was  apprehension that administration of justice would not be possible in such atmosphere.      This was  reiterated in  Hazara Singh Gill v. The State of Punjab,  [1964] 4 SCR 1 where Justice Hidayatullah as the learned Chief  Justice then  was, observed that the question was really  whether the  petitioner can be said to entertain reasonably an  apprehension that  he would  not get justice. One of  the highest  principles in the administration of law is that  justice should  not only be done but should be seen to be done. In that case there was enough allegation to show that certain  strong parties  were opposed to the petitioner in various ways.      In this  case, in  view of  the nature  of  allegations regarding some  of the  respondents  who  have  been  added, strong feelings  are likely  to be roused in some section of community. In such an atmosphere to meet the ends of justice it would  be desirable  to have  the case  transferred to  a calmer and quieter atmosphere. Justice would be done in such a way.  The power  of this  Court  to  transfer  a  suit  or proceeding from  one State to another State is a power which should be  used with  circumspection and  caution but if the ends of justice so demand in an appropriate case, this Court should not  hesitate to  act. The fact that an extraordinary atmosphere exists  in Punjab  cannot be  denied. To  contend otherwise would  be to contend for an unreality. The suit is unusual and  sensitive, and the time is critical. This Court should act  by transferring  the case  outside the  State of Punjab to  meet the  ends of  justice. That  is an  absolute imperative in this case.      Our attention  was also  drawn to  a recent decision of this Court  in the  case of  State of  Assam v.  Atul Vohra, Transfer Petition  No. 21/80  where this  Court  transferred certain writ  petitions from  the Gauhati  High Court to the High Court of Delhi.      In the  instant case  there was some submission made on behalf of the respondents that the petition was not verified properly. But  on reading paragraphs 3 and 15 of the present petition, we  are of  the opinion  that  there  are  certain allegations   which   can   made   ground   for   reasonable apprehension that  justice would  not be done in the suit of this nature. 477      In view  of that  we are  of the  opinion that  in  the interest of  justice this case should be transferred outside the State of Punjab. It has been contended that Delhi is not a safer  place for trial of this suit. It has been contended both on  behalf of Respondent Nos. 1 & 2 and State of Punjab that in view of recent happenings in Delhi, it is not a safe

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place for  trial of  this suit.  After having considered all aspects,  we  are  of  the  opinion  that  an  extraordinary situation exists in the State of Punjab and not in Delhi. In view  of   the  special  features  of  the  case  and  after considering the pros and cons, we are of the opinion that it should be tried in the interest of justice outside the State of Punjab. We nay reiterate that this order shall not in any way be  construed as  a reflections  on the independence and fairness of the judiciary of Punjab or on the ability of the Government of  Punjab to maintain law and order in the State of Punjab.      Having regard  to the  nature of suit and the situation prevailing in  the State of Punjab and having considered the submissions of  all the parties about the alternative forum, we direct  that the  suit be tried by a learned Single Judge in the original side of the Delhi High Court. The suit shall stand transferred accordingly and begin from the stage where it is. The Chief Justice of the Delhi High Court will assign the learned Judge for hearing. S.R.                                        Petition allowed 478