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PETITIONER: PRITAM DASS MAHANT

       Vs.

RESPONDENT: SHIROMANI GURUDWARA PRABANDHAK COMMITTEE

DATE OF JUDGMENT16/01/1983

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A. MISRA RANGNATH

CITATION:  1984 AIR  858            1984 SCR  (2) 564  1984 SCC  (2) 600        1984 SCALE  (1)327  CITATOR INFO :  R          1984 SC1059  (19)

ACT:      Sikh Gurudwara  Act, 1925,  as amended by the Amendment Act I  of 1959-Section  16(2)-Whether the  institution  Dera Bhai Bhagtu  was a Sikh Gurudwar? Whether mere recitation of Guru  Granth  Sahib  without  anything  more  ?  Distinctive features of  Sikhism and Sikh temples-Court’s duty to record positive findings  in terms   of  Section 16-Appreciation of the evidence  of a  witness. The  fact that  he belongs to a particular political  party or the other does not change the veracity of his evidence.

HEADNOTE:      Sixty five  persons claiming  to be members of the Sikh community moved  an application  before the State Government under Section 7(1) of the Sikh Gurudwara Act, 1925 to have a religious institution  in village  Ramgarh  (also  known  as Bhagtuana  of   Faridkot  tehsil,  declared  to  be  a  Sikh Gurudwara.  The   State   Government   notified   the   said application in  the Punjab  Government Gazette  in terms  of Section 7(3) of the Act on 18th October, 1963. Upon this the appellant made  an application under Section 8 and 10 of the Act claiming  that the  institution was not a Sikh Gurudwara but an  Udasi institution  known as  Dera Bhai  Bhagtu.  The application was  referred to the Sikh Gurudwara Tribunal for adjudication. The  petition was  resisted by  the respondent Shiromani Gurudwara  Prabandhak Committee  on three grounds: (i) that  the  appellant  was  not  competent  to  move  the petition under  section 7  of  the  Act  as  he  was  not  a hereditary office-holder,  (ii) that  the provisions  of the Act are  not ultravires the Constitution; and (iii) that the institution in  dispute was  a Sikh  Gurudwara. The Tribunal held against  the respondent  and in favour of the appellant on  contention(1).  Since  the  second  contention  was  not pressed and  the third  question was  the  only  issue,  the Tribunal held  that the institution was a Sikh Gurudwara. In appeal, the  Punjab and  Haryana High  Court  confirmed  the Tribunal’s findings.  Hence the  appeal by  Special Leave of the Court.      Allowing the appeal, the Court

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^      HELD: 1.1.  The religious institution, Dera Bhai Bhagtu is not  Sikh Gurudwara.  On the  materials  on  record,  the findings recorded  by the Tribunal as well as the High Court are wholly  unsupportable to  satisfy the tests indicated in law for determining the character of the institution. [581D]      1.2. The  findings of  the High Court clearly show that the four  important and most relevant aspects of the case as disclosed in  the evidence  were  completely  overlooked  or side-tracked by  the High  Court. They  are: (i)  there  are Samadhs on  the premises  of the institution; (ii) there are idols and  photos of  Hindu deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv) succession was from Guru to Chela. 565 The petition  filed by  the appellant  under s.8  of the Act contained a clear averment that the institution had been set up by  Bhai Bhagtu who was a Udasi Saint and the presence of three Samadhs of (1) Bhai Bhagtu, (2) Baba Paras Ram Ji, and (3) Mahant  Sahib Dass Ji, was also asserted. In the written statement the respondent, after a vague denial, had admitted the institution  to have been founded by Bhai Bhagtu. Pritam Dass, the  appellant did  support his  case. Ordinarily  his evidence would have been treated as interested as he happens to  be   the  party   but  his  assertions  have  been  well corroborated. The  same is  strengthened by  the evidence of all  respondent’s   witnesses.  The  evidence  of  witnesses clearly indicates: (i) that there are atleast two samadhs in the premises of the institution-one being of Bhai Bhagtu and the other  of his  mother; (ii) the existence of the idol of Baba  Srichand,  the  founder  of  the  Udasi  Sect  in  the premises. Clearly  the Sikhs  would not  permit the  idol of Baba Srichand  in a  Gurudwara while Udasis would ordinarily install such an idol to perpetuate the memory of the founder of their  sect; (iii) the succession was from Guru to Chela; and  (iv)   there  are   photos  of  Hindu  deities  in  the institution. These  facts without  anything  more  would  be sufficient to  reject the  case of  the respondent  that the institution is a Sikh Gurudwara. [579A-C; G; 580G-H]      1.4. From  the very  fact that  Guru Granth  Sahib  was recited in  the institution  no support can be drawn for the claim that  the institution was a Sikh Gurudwara. It is well established that  Udasis are midway between Sikhs on the one hand and  the Hindus  on the  other. Srichand  son  of  Guru Nanak, the  founder of  Sikhism, had  broken away and set up the Udasi sect. [581B-C]      2.1. Although  for the  purpose of  historical research and analysis on the subject like Sikhs and Sikh temples, the forum of  a court  of law  is not ideal, yet, if the statute enjoins the  court to  decide such  questions, the court has got to discharge the responsibility. [569D]      2.2. The  court has  been called upon to decide whether the institution  in question  is  a  Sikh  Gurudwara.  While considering  this  question  the  Court  has  to  take  into consideration all the circumstances which favour or militate against the  institution being a Sikh Gurudwara. In the very nature of  things and  in view  of the  requirements of sub- s.(2) of  s. 16 it becomes necessary to consider whether the institution being  in charge of a Udasi saint, the existence of samadhs  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 samadhs and the various idols, the absence

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of a  granthi and succession to the institution from guru to chela. The  appellant cannot,  therefore, be  prevented from urging the aforesaid circumstances. [573F-H; 574A]      2.3. Courts cannot discard the evidence of witnesses of one side  by  simply  saying  that  the  oral  testimony  is interested and hardly any credible, when witnesses on either side have come to depose on oath. Here, the grounds on which the evidence  adduced on  behalf of  the appellant  has been discarded may  equally apply  to  the  evidence  adduced  on behalf of  the respondent.  The Court should have considered the worth  of the  evidence of  each witness and should have given reasons  for disbelieving  the same  on merit.  A bald observation that  the witnesses  produced on  behalf for the appellant are  interested must be deprecated. The courts had to decide the 566 question in  view of  the provisions of sub-s.(2) of s.16 of the Act  and they  had to  record a  positive finding in the light of  sub-s.(2) of  s.16. Unless  the claim falls within one or  the other  of  the  categories  enumerated  in  sub- section(2) of s.16, the institution cannot be declared to be a Sikh Gurudwara [577B-D; 578C]      3.1. 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 situation  in  which  full  authority  is  enjoined  by  the scripture. In  every respect the scripture is what the Gurus were. [569G]      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. [569H; 570A]      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. [570B-C]      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 the God became audible. [570D]      The holiest  book of  the Sikhs  is Guru  Granth  Sahib complied by the Fifth Master, Guru Arjun. 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.  Whenever the Sikhs needed guidance or  counsel, they should assemble before the Granth in all  sincerity and decide their further line of action in

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the 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 blisss and happiness. [570E-F; 571B]      3.2. Temples  are found  almost in  every religion  but there are  some differences  between the  Sikh  temples  and those of  other religions.  The  Sikh  Gurudwaras  have  the following distinctive features: [571C]      1. Sikh  temples are  not the  place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurudwara. The central object of worship 567 in a  Gurudwara is Sri Guru Granth Sakib, 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  Shabada about the Eternal Truth or God. No idol or painting of any Guru can be worshipped. [571C-D]      2. Sikh  worship in  the Gurudwara  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 Gurudwara. [571E-F]      3. Gurudwara  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  Gurudwara 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 Gurudwara  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. [571G-H; 572A]      3.3. The  sine qua  non for an institution being a Sikh Gurudwara 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 Gurudwara. Any learned person can read  Guru Granth Sahib and explain to the congregation. [572B-C]      Hem Singh  and Others  v. Basant  Das &  Anr. (1935-36) L.R. 631 IA 180;      Bawa Ishar Dass & Others v. Dr. Mohan Singh and Others, AIR 1939 Lah. 239      Arjan Singh v. Inder Das 15 Lah. 247;      Harnam Singh v. Gurdial Singh [1967] 2 SCR 739.      Mahant Dharam Das etc. v. State of Punjab & Ors. [1975] 3 SCR 160.      Sohan Das  v. Bela  Singh &  Ors.  AIR  1934  Lah.  180

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referred to,

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1983 of 1970      From Judgment  and Decree dated 29-7-69 of the Punjab & Haryana High Court in F.A.O. No. 35/66. 568      Naunit Lal,  K.  Vasdev  and  Ms.  V.  Grover  for  the appellant.      V.M. Phadke and Harbans Singh for the respondent.      The Judgment of the court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against  the judgment  and order  dated 29th  July, 1969 of the High Court of Punjab and Haryana at Chandigarh.      The dispute  in this  appeal centres around a religious institution in  village Ramgarh  (also known  a  Bhagtuana), tehsil  Faridkot,   district  Bhatinda.   This  village  was previously in  the erstwhile  Nabha State  which merged with Pepsu and  after the  reorganisation of the States, became a part  of  the  Punjab  State  in  1956.  Sixty-five  persons claiming to  be members  of  the  Sikh  community  moved  an application before  the State  Government under  s. 7 (1) of the Sikh  Gurdwara Act, 1925 (hereinafter referred to as the Act), as amended by the Amendment Act I of 1959, to have the institution declared  to  be  a  Sikh  Gurdwara.  The  State Government notified  the  said  application  in  the  Punjab Gazette in  terms of  s. 7  (3) of  the Act on 18th October, 1963. Upon  this the appellant made an application under ss. 8 and  10 of the Act claiming that the institution was not a Sikh Gurdwara  but an  Udasi institution  known as Dera Bhai hagtu. This application was referred by the State Government to the  Sikh Gurdwara  Tribunal  for  adjudication.  It  was contended by  the appellant that throughout its long history the  institution   has  been   an  Udasi  institution.  This institution was  not established for use by Sikhs for public worship. nor  was it founded in the memory of a Sikh Martyr, saint or  a historical  person. It  has never  been used for public worship by the Sikhs. The institution was the Dera of Udasi Bhekh  and the  objects of  worship are  idols of Gola Sahib and of Baba Srichand, and the various samadhs.      The petition  was resisted  by the respondent Shiromani Gurdwara Prabandhak Committee on three grounds: (1) that the appellant was  not competent  to move the petition under s.7 of the  Act because  he was  not a hereditary office holder, (2) that  the provisions  of the Act are not ultra vires the Constitution, and  (3) that the institution in dispute was a Sikh Gurdwara.      On the  pleadings of  the parties  the Tribunal  framed three issues:  whether the  provisions of  the Act are ultra vires the Constitution, 569 (2) whether  the appellant  was a  hereditary office holder, and (3)  whether the  institution  in  dispute  was  a  Sikh Guradwara. Issue  No. 1  was not pressed and, therefore, the Tribunal in  conformity with the previous decisions held the provisions of the Act to be intra vires the Constitution. On the second  issue the  Tribunal recorded a finding in favour of the appellant. On the third issue, the Tribunal held that the disputed institution was a Sikh Gurdwara.      The appellant  feeling aggrieved by the judgment of the Tribunal took  up the matter in appeal to the High Court and the High  Court in  its turn  confirmed the  findings of the

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Tribunal and  dismissed the appeal by the impugned judgment. The appellant has now come to his Court on obtaining special leave and  the only issue that survives for consideration by this Court  is issue  No.3, that is, whether the institution in dispute is a Sikh Gurdwara.      Before dealing with the points urged by the counsel for the parties  it would  be appropriate  at this stage to know the  distinctive  features  of  Sikhism  and  Sikh  temples. Although for the purpose of historical research and analysis on such  subject, the  forum of  a court of law is not ideal yet  if  the  statute  enjoins  the  Court  to  decide  such questions,   the    Court   has   got   to   discharge   the responsibility. Section 16 (1) of the Act provides:           "16 (1). Notwithstanding anything contained in any      other law  in force  if  in  any  proceeding  before  a      tribunal it  is disputed  that  a  gurdwara  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)."      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 situation  in  which  full  authority  is  enjoined  by  the scripture. In  every respect the scripture is what the Gurus were.      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 compiled and installed 570 in  the  newly  built  Darbar  Sahib  in  1604  for  he  was acknowledged the  higher authority  of the  Banidue  to  the personal importance  and significance  which he possessed as Guru.      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.      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.      The holiest  book of  the Sikhs  is Guru  Granth  Sahib compiled 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.

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    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". 571      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 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 bills and happiness.      Temples are  found almost  in every  religion but there are some  difference between  the 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 Shabada  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  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 572 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.      From the  foregoing discussion  it is  evident that the

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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.      With this preliminary about the distinctive features of a Sikh temple we proceed to deal with the contentions of the counsel for the parties.      Shri Naunit  Lal, counsel  for the  appellant 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 he High Court.           "On an overall consideration of this aspect we are      inclined to  accept the  contention of  Mr. Shant  that      admittedly  Bhai  Bagtu  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 s. 16(2) (iv) of the Sikh Gurudwara Act".      But  this   observation  is   not  warranted  from  the pleadings or  the  evidence of the parties. Pritam Dass, the appellant, as  P.W.S. in  his deposition  has  categorically stated: "Bhai  Bhagtu was  an Udasi Fahir". 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, 573 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 Sikhsaint 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.      It was  next  contended  for  the  appellant  that  the appellant of  udasi set being incharge 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 samadhs within the precincts of the  institution  and  the  absence  of  a  granthi  in  the institution are all in-compatible with the institution being a Sikh Gurdwara.      Shri M.  N. Phadke  appearing for the respondent on the other hand  has contended  that (1)  the points  which  were never urged  in the  courts below could not be allowed to be raised for the first time in this Court; (2) in any case the existence of  samadhs and  idols within the precincts of the institution and  the worship  thereof, and  the absence of a granthi and  the succession  to the institution from guru to chela are  not destructive  of the  institution being a Sikh

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Gurdwara; (3)  the  finding  of  the  High  Court  that  the institution  in   question  is  a  Sikh  Gurdwara  is  fully warranted by  the evidence  on record, and (4) the nature of the institution has to be decided in the light of sub-s. (2) of s. 16 of the Sikh Gurdwara Act.      The Court  has been  called upon  to decide whether the 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-s. (2) of  s. 16  it becomes  necessary to consider whether the institution  being   in  charge  of  an  Uadasi  saint,  the existence of samadhs 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 samadhs and the various idols, the absence of a granthi and succession to the institution 574 from guru  to chela.  We see  no reason why the appellant be prevented from urging the aforesaid circumstances.      On the question whether the existence of samadhs 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.      The counsel  for the  appellant relied  on Hem  Singh & Ors. v.  Basant Das  & Anr(1). In that case the question for consideration was  whether Udasis  are Sikhs. The court held that Udasis  are not Sikhs for the purposes of Sikh Gurdwara Act. Although  Guru Nanak  founded Sikhism as a new religion by sweeping away idolatry and polytheism, Sri 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 the 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.      Reliance was next placed upon Bawa Ishar Dass & ors. v. Dr. Mohan Singh & ors (2) 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 Udasis institution.      It was  held by  a Division  Bench of  this Court in 15      Lah. 247(2) 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      fact a monastic 575      Order in  their origin  and are  followers of Bawa Siri

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    Chand, son  of  the  first  Guru  though  they  worship      smadhs, etc. they do reverence the Granth Sahib without      completely  renouncing  Hinduism.  They  are  often  in      charge of  the village Dharamsala 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 positions, it is possible for Udasis      to be  in charge  of   a  Sikh  Gurudwara  properly  so      called, but it does not follow that that institution is      a sikh  Gurudwara and  not  a  true  Udasi  institution      merely because the Granth Sahib is read".      In Harnam  Singh v.  Gurdial Singh  on an  analysis  of various decisions this Court held:      "These decisions  clearly indicate  the principle  that      though the  Sikh Guru  Granth  Sahib  is  read  in  the      shrines managed  by the  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 more      fact that  at some  stage there was a Guru Granth Sahib      in this  Dera cannot  thus lead  to any conclusion that      this institutions  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      Sikhs religion  residing  in  village  Jhandawala,  the      plaintiffs/respondents could  not be  held to have such      an interest as could entitled hem to institute the suit      under s. 92 of the Code of Civil Procedure."      Shri Phadke  appearing, for the respondent on the other hand his  cited Mahant  Dharam Das etc. v. State of Punjab & Ors (2).  Dealing with  the tenets  of the  Sikhs this Court observed:           "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. 576      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  of  the  Guru  on  earth  and      thereafter they were managed by the Panth through their      Granthis and  other  sewadars  who  were  under  direct      supervision of  the local  Sangat  or  congregation-The      position  of   the  Gurdwaras  changed  during  British      regime. The  mahants who  were in  charge of  the  Sikh      Gurdwaras could  either  be  a  Sikh  Mahant  or  Udasi      Mahant....Though there  was no  reconciliation  between      the Sikhs  and Udasis,  it did not matter if the Mahant      of a  Sikh Gurdwara  was not  a Sikh Mahant because the      Panth or Sangat exercised control over the Gurdwaras".      Next reliance  was placed  o Sohan  Das v. Bela Singh & Ors.(2) Dealing  with s. 16(2) of the Sikh Gurudwara Act the Court observed:           "The documentary  evidence  therefore  establishes      that the  dharamsala has been a place of public worship      since 1853,  and that  such worship  has been connected

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    with the  Granth Sahib  I am  prepared  to  accept  the      evidence of  the objectors  that  the  existence  of  a      samadh dates only from recent times, more than probably      after the  Sikh Gurdwara  controversy had  become acute      and he  importance of a samadh had been realized by the      Udasi Mahants.  I  hold  therefore  that  the  evidence      supports the conclusion of the majority of the Tribunal      that this  institution falls  within s.16  (2) (iii) of      the Act".      In view of the divergent cases cited by the counsel for the  parties   we  have   to  take  into  consideration  the distinctive features  of a Sikh Gurdwara as discussed in the earlier part  of the  judgment. So  viewed, the existence an worship of  Guru Granth  Sahib and  the existence  of Nishan Sahib are the determinative factor.      The Tribunal  did not  take into consideration the oral evidence  adduced  by  the  parties.  Eight  witnesses  were produced on behalf of the appellant while six witnesses were produced on  behalf of  the respondent.  The High Court also did not  give a  proper deal to the oral evidence adduced by the appellant.  The only  consideration given  by  the  High Court to  the oral  testimony of the witnesses on behalf, of the appellant was in the following terms: 577           "As regards  the oral  testimony on the point that      the institution  was a Dera of an Udasi Sadhu, the same      is  obviously  interested,  and  hardly  credible.  The      Tribunal has not attached any weight to the same and we      are  wholly  in  agreement  with  the  finding  of  the      Tribunal on that point."      The witnesses  on either  side have  come to  depose on oath. The grounds on which the evidence adduced on behalf of the appellant  has been  discarded may  equally apply to the evidence adduced  on behalf  of the  respondent.  The  Court should have  considered the  worth of  the evidence  of each witness and  should have  given reasons for disbelieving the same  on  merit.  A  bald  observation  that  the  witnesses produced on  behalf of  the appellate are interested must be deprecated.      Even otherwise the courts below have not approached the case from  the correct  angle. (The Courts had to decide the question in view of the provisions of sub-s. (2) of s. 16 of the Act  and they  had to  record a  positive finding in the light of sub-s.(2) of s. 16,) which reads:      "16 (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  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           (I) 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 of the presentation           of the  petition under  Sub-section (I) 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 (I)

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         of section 7; or 578      (v)   owing to  some incident  connected with  the Sikh           religion was used for public worship predominantly           by  Sikhs,   before  and   at  the   time  of  the           presentation of the petition under sub-section (I)           of section 7;      the tribunal shall decide that it should be declared to      be a Sikh Gurdwara, and record an order accordingly".      Unless the  claim falls  within one or the other of the categories enumerated  in sub-section  (2)  of  s.  16,  the institution cannot be declared to be a Sikh Gurdwara.      The Court  had, therefore, first to consider as pleaded by the  parties, as to whether Bhai Bhagtu was a Udasi saint or a Sikh saint, and then to decide on the basis of evidence whether the  institution in  question is  one or  the of the types  indicated.   This   was   the   only   question   for consideration before  the High  Court but  unfortunately  it assumed what was to be proved.      On the  foregoing discussion  we are satisfied that the High Court has not given a proper deal to the matter and has not considered the oral evidence    adduced on behalf of the parties.  Nor  has  it  approached  case  from  the  correct perspective of law.      Ordinarily, in  a situation  as here  the matter should have gone  back to the High Court for recordings findings on the basis  of  appreciation  of  evidence  but  we  are  not inclined to  remand the  matter as it is a very old dispute. We are,  therefore ,  prepared to take that burden ourselves and finally  decide the  dispute. As  would appear,  parties were aware  of the  nature claim  and the evidence to be led and, therefore,  parties concentrated their attention on the aspects which  would be,  decisive of the points in dispute. It is  unfortunate that  the Tribunal and the High Court did not Keep  the proper perspective in view whiles dealing with the matter.      On behalf  of the  appellant Ram  Saran  Dass,  P  W-1, Charan Dass,  PW 2,  Bishan Dass,  PW 3, Jagraj Singh, PW 4, Chajju Ram, PW 5, Zora Singh Patwari, PW 6, Surjit Singh, PW 7 and  the appellant,  PW 8, were examined. On behalf of the respondent, Hardev  Singh, RW  1, Bachan Singh, RW 2, Balbir Singh, RW  3, Balwant  Singh, RW  4, Hazura Singh, RW 5, and Gurdial Singh, RW 6, were examined as witness. 579      The finding of the High Court as extracted hereinbefore clearly show  that the  four  important  and  most  relevant aspects of  the case  as disclosed  in the    evidence  were completely overlooked  or side  tracked by  the High  Court, They are:  (i) there  are Samadhs  on the  premises  of  the institution ;(ii)  there  are  idols  and  photos  of  Hindu deities; (iii)  Bhai Bhagtu  was a  Udasi  Saint;  and  (iv) succession was from Guru so Chela. The petition filed by the appellant under  s.8 of  the Act  contained a clear averment that the  institution had been set up by Bhai Bhagtu who was a Udasi  Saint and the presence of three Samadhs of (I) Bhai Bhagtu, (2)  Baba Paras Ram Ji and (3) Mahant Sahib Dass Ji, was also  asserted. In the written statement the respondent, after a  vague denial,  had admitted the institution to have been founded by Bhai Bhagtu.      PW 1,  Ram Saran  Dass stated that there was an idol of Baba Srichand  in the institution and there were pictures of Lord Krishna  and other  Hindu deities.  This statement  was elicited in  cross-examination made  by the respondent. PW 2 has stated  that there  is an idol of Baba Srichand and Gola Sahib in the institution and they are objects of worship. PW

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3, Bishan  Dass, referred  to the idol of Baba Shrichand. PW 4, Jagral  stated that  there were  three or four samadhs on the premises  of the  institution and  those are  objects of worship   There  was  no  challenge  to  this  statement  in examination-in-chief by cross-examination. PW 5 was asked in cross examination whether there were Samadhs on the premises of the  institution and  his answer  is revealing. He stated that  there  are  three  Samadhs  on  the  premises  of  the institution and  there is  a dome  over the  Samadhs of Bhai Bhagtu. He  added that  there are  other pictures  of  Hindu deities  and   Hindu  Festivals   are  celebrated   in   the institution. PW  7, Surjit  Singh, the local Sarpanch stated that the  institution was  of Udasi  Fakirs. He  also stated that there is a Samadh of Bhai Bhagtu on the premises of the institution and  it is  an object  of worship.  He indicated that the  Samadh of  Bhai Bhagtu  was worshipped  in a grand scale while  the other two Samadhs were not treated on equal basis. There  was no  cross-examination of  this witness  on this aspect.  Pritam Dass,  the appellant  did  support  his case. Ordinarily  his evidence  would have  been treated  as interested as  he happens to be the party but his assertions have well corroborated.      Coming to  the respondent’s  side,  the  first  witness Hardev Singh  in his  examination-in-chief stated that there is a  Samadh of  Bhai Bhagtu  in the institution and another Samadh of  his mother. On the basis of this admission of the principal witness of the respondent there can be 580 on doubt  that Samadhs  exist within the institution. At the hearing counsel  had pointed  out that  this witness  was  a member of the Communist Party. We do not think that would at all be  a proper  way of  appreciating the  evidence of  the witnesses. He was a witness called by the respondent and was not  declared   hostile,  if   he  made  admissions  in  his examination-in-chief. On  the other  hand, the  fact that he does not  belong to  the groups  of either  party and  is  a Communist would lend credence to his evidence as coming from an impartial  source. The  next witness,  RW 2, Bachan Singh admitted the  existence of  the Samadhs  but denied that the Samadh of Bhai Bhagtu was an object of worship. RW 3, Balbir Singh, admitted  the presence  of Samadh  of Bhai  Bhagtu as also of  his mother.  It is  in the evidence of this witness that he  also belongs  to the  Communist Party. What we have said about  RW 1  equally applies  to this  witness.  RW  4, Balwat Singh  admitted the presence of Bhai Bhagtu’s Samadh; while RW  5, Hazura Singh stated that there were two Samadhs on the  premises one  of Bhai  Bhagtu and  the other  of his mother. The  last  witness,  RW  6,  Gurdial  Singh  in  his evidence admitted  the existence of the two, Samadhs of Bhai Bhagtu and his mother.      This analysis of the evidence clearly indicates that it has been  unquestionably established  without the  slightest shadow of a doubt that there are at least two Samadhs on the premises of the institution-one being of Bhai Bhagtu and the other of his mother.      The existence of the idol of Baba Srichand, the founder of the  Udasi sect  in the  premises also seems to have been fully established. As already stated, Sikhs would not permit the idol  of Baba Srichand in a Gurdwara, while Udasis would ordinarily install  such an idol to perpetuate the memory of the founder of their sect.      What emerges  from this  discussion is that as found by the Tribunal,  the succession  was from  Guru to Chela; that Bhai Bhagtu  was a  Udasi Saint and there are Samadhs on the premises-one of  Bhai Bhagtu  and the  other of  his mother.

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Evidence shows that there are photos of Hindu deities in the institution. These three facts, without anything more, would be sufficient  to reject the case of the respondent that the institution is  a Sikh  Gurdwara. We would like to reiterate that existence  of Samadhs and succession from Guru to Chela would clearly be destructive of character of the institution as a  Sikh Gurdwara  because they  are inconsistent with the tenets of the Sikh 581 religion. The  issue before  the  High  Court  as  also  the Tribunal was  whether the institution Dera Bhai Bhagtu was a Sikh Gurdwara.      Reference to  another aspect  would be  relevant  here. Counsel for the respondent emphasized the feature that there was evidence  to show that Guru Granth Sahib was recited and read in this institution. It is well established that Udasis are mid-way  between Sikhs on the one hand and Hindus on the other. Srichand,  son of  Guru Nanak,  the  founder  of  the Sikhism, had,  as already  indicated, broken away and set up the Udasi  sect. Udasis  while venerating Guru Granth Sahib, retained Hindu practices and also showed their veneration to the Samadhs.  From the  very fact that Guru Granth Sahib was recited in this institution, no support can be drawn for the claim that the institution was a Sikh Gurdwara.      On the materials on record, we are of the view that the findings recorded by the Tribunal as also the High Court are wholly unsupportable  to satisfy  the tests indicated in law for determining  the character  of the institution. We allow the appeal,  reverse the  decision of the Tribunal as upheld by the  High Court  and declare that Dera Bhai Bhagtu is not Sikh Gurdwara.  In the circumstances of the case there would be no order as to costs. S.R.                                         Appeal allowed. 582