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PETITIONER: SHIROMANI GURDWARA PARBANDHAKCOMMITTEE

       Vs.

RESPONDENT: LT. SARDAR RAGHBIR SINGH AND OTHERS.

DATE OF JUDGMENT: 24/03/1955

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.

CITATION:  1955 AIR  455            1955 SCR  (2)  67

ACT: Limitation-Sikh  Gurudwaras  Act, 1925 (Punjab Act  VIII  of 1925),   25.A-Committee constituted prior to the year  1930- Subsequent    proceedings-High    Court’s    decision    and notification  under  s. 17 of the Act-Suit  for  Possession- Starting  Point  for limitation-Ss. 85, 86, 88 of  the  Act, scope of.

HEADNOTE: The  plaintiff which is the Committee of Management for  all Gurudwaras situated within the Municipal limits of Amritsar, except  the Gurudwara Sri Akal Takht Sabib, was  constituted prior to the year 1930 and by virtue of s. 85(2) of the Sikh Gurudwaras  Act  (Punjab  Act  VIII  of  1925)  became   the Committee  concerned  with the suit Gurudwara.   There  were certain  proceedings  under the Act in respect of  the  suit properties  which were ultimately decided by the High  Court on  the  16th June 1936 and the decision was followed  by  a notification  under s. 17 of the Act on the 3rd March  1937. As a result the plaintiff became entitled to get  possession of  the  said  properties by instituting  a  suit  before  a tribunal  under s. 25-A of the Act within one year from  the date of the decision or the date of the constitution of  the Committee, whichever was later.  The present suit was  filed on  the 25th February 1938 which was beyond one year of  the decision  and the question was whether the suit can be  said to  have been instituted within one year of the date of  the constitution  of the Committee of the  Gurudwara  concerned, the  contention being that the plaintiff must be  deemed  to have become the committee concerned with the suit  Gurudwara only  on the date of the notification thereof in 1937  under s.  17 of the Act by virtue of the provisions of ss. 86  and 88. Held, that the date of the notification in 1937 under s.  17 cannot  be deemed to be the date of the constitution of  the Committee concerned for the purposes of s. 25-A and that the present suit is barred by limitation. Section 86 does not apply to Gurudwaras within the Municipal limits of Amritsar specified in s. 85, in respect of which a Committee already exists and by virtue of sub-section (2) of

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s. 88 the date of the publication of the notification of the Committee  which  already has been in existence  since  1930 will be the date of the constitution of the Committee within the meaning of s. 25-A.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11 of 1954. 68 Appeal  from the judgment and Decree dated the 20th  day  of June  1950 of the High Court of Judicature for the State  of Punjab  at  Simla  in Regular First Appeal No.  73  of  1941 arising  out  of the Decree dated the 19th day  of  December 1940  of the Sikh Gurudaras Tribunal, Lahore in Suit No.  11 of 1938. Gurbachan Singh and R. S. Narula, for the appellant. Achhru Ram, (Naunit Lal with him), for the respondents  Nos. I and 2. K. L. Mehta, for the respondents Nos. 3 to 5.     1955.   March  24.   The  Judgment  of  the  Court   was delivered by JAGANNADHADAS  J.-This is an appeal on leave granted by  the High  Court  of Punjab against its  judgment  affirming  the decree  of  the  Sikh  Gurdwara  Tribunal  dated  the   19th December,  1940,  dismissing  the  plaintiff’s  suit.    The plaintiff  in the appeal is the Committee of  Management  of Sikh  Gurdwaras  within  the Municipal  limits  of  Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar).   The plaint  was filed under section 25-A of the  Sikh  Gurdwaras Act,  1925, (Punjab Act VIII of 1925) (hereinafter  referred to as the Act) for possession of certain properties situated in  Amritsar, marked and bounded as specified in the  plaint and  purporting to have been declared as a Sikh Gurdwara  by the  Government  of Punjab under section 17 of  the  Act  by means of the notification No. 9-G dated the 3rd March, 1937. The case of the plaintiff-Committee is that these properties were,  and were determined to be, a Sikh Gurdwara,  by  name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by  its decree dated the 4th November, 1935 and confirmed on  appeal therefrom by the High Court of Judicature at Lahore, on  the 16th  June,  1936  and that accordingly  the  Committee  was entitled  to possession of the properties.  The  facts  that have led up to the present appeal are as follows: After  the Act  was passed and within one year of its commencement  the then existing non-statutory Shiromani Gur- 69 dwara  Parbandhak Committee filed a list under section 3  of the Act claiming the suit properties and certain other items attached  thereto  as belonging to  the  Gurdwara  Harmandir Sahib.   These properties comprised two items  called  Bunga Sarkar  and  Bunga Mai Mallan and the shops  appurtenant  to each of them.  Objections were filed to this list by way  of two  applications under section 8 of the Act claiming  these as  private  properties.  One was by  Sardar  Balwant  Singh dated  the  8th  March., 1928 and the other  was  by  Sardar Raghbir  Singh dated the 10th March, 1928.   Sardar  Raghbir Singh claimed the whole of Bunga Sarkar and its  appurtenant shops  as well as 1/3rd of the Bunga Mai Mallan and  of  the appurtenant   shops.   Sardar  Balwant  Singh’s  claim   was confined  to  1/3rd  share in Bunga Mai Mallan  and  in  the appurtenant  shops.   The  other 1/3rd share  in  Bunga  Mai Mallan was apparently treated by these claimants as  belong- ing  to  some  other person who was not  a  party  to  these proceedings.   These two applications were  forwarded  under

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section  14  of  the Act to the Gurdwara  Tribunal  for  its decision.  The parties to these -proceedings entered into  a compromise  on  the  6th february,  1930.   There  were  two compromises  one relating to each of the applications.   The net effect of the compromises was that some out of the items claimed  were  admitted to be the private  property  of  the respective  claimants  and the rest as wakf bungas  for  the Yatries   to  Sri  Darbar  Sahib,  that   the   non-personal properties   were  to  remain  in  the  management  of   the claimants, their heirs and representatives as such wakf with certain  stipulations  as to how that management was  to  be carried  on.  The Tribunal disposed of the two  applications before  them  in  terms of these  compromises.   It  may  be mentioned  that though the original list under section 3  of the  Act  was  filed by  the  then  non-statutory  Shiromani Gurdwara Parbandhak Committee, the compromises were  entered into  by the Managing Committee of the Gurdwaras within  the limits   of   the  Municipal  Committee,   Amritsar,   which presumably had already by then been formed Linder section 85 of the Act.  Now, quite independently of these 70 proceedings befere the Tribunal, and prior to the filing  of the list under section 3 and of the objections under section 5  above referred to, there had been filed a petition  under section  7  of the Act, signed by 55 Sikhs,  claiming  these very  properties as being in themselves a Sikh  Gurdwara  by name   Bunga  Sarkar  (Maharaja  Ranjit  Singh  Saheb)   and enclosing  a list of properties as belonging  thereto  under section  7(2)  -of the Act.  It does not  appear  that  this petition was brought to the notice of the Gurdwara  Tribunal when  it passed the decree in terms of the  compromise  with reference to the objections under section 5 of the Act.  The petition under section 7 was in the usual course followed by a  notification  issued  by  the  Government  on  the   18th February,  1930,  under  section  7(3)  of  the  Act.   This resulted in (1) an objection under section 8 by the Granthis objecting  that  this was not a Sikh Gurdwara, and  (2)  two other objections by Sardar Raghbir Singh and Sardar  Balwant Singh,  already previously above referred to, under  section 10  of  the  Act claiming the properties as  their  own  and objecting  to the claim made that they were Sikh  Gurdwaras. These objections were filed on the 5th April, 1930.  It  may be  noticed that the notification under section 7(3) of  the Act  was within a few days after the compromise  decrees  in the  proceedings under section 5 of the Act and it does  not appear whether the compromises were brought to the notice of the  Government or not.  These objections under  sections  8 and  10 (and presumably also the petition under  section  7) were  forwarded  to  the Tribunal  for  its  decision  under section  14 of the Act.  The petition under section 8  filed by  the  Granthis was contested by  the  Shiromani  Gurdwara Parbandhak  Committee (Statutory) and after  recording  some evidence,  the  Tribunal came to the conclusion  that  Bunga Sarkar  was a Sikh Gurdwara and declared it as such  on  the 28th  August,  1935.  On the objections  under  section  10; notices were given to the Committee of Manaaement as well as to  the  Shiromani Gurdwara Parbandhak  Committee  but  they declined to become parties to it.  The contest under section 10 of the Act 71 was only as between the claimants and some of the Sikhs  who filed  the petition under section 7. At the  hearing  before the Tribunal both sides relied upon the previous compromises in support of their respective claims.  The Tribunal by  its decision  dated  the 4th November, 1935,  decided  that  the

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properties  which  had been declared as  the  properties  of Sardar Raghbir Singh and Sardar Balwant Singh  respectively, should be declared to be their personal properties and  that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto.  It was also declared that  these  two  Gurdwaras and the properties  held  to  be appurtenant to them should vest in the management of  Sardar Raghbir  Singh and Sardar Balwant Singh by virtue of and  as per terms of the compromises.  As against these decrees  two appeals  were presented by the Sikh worshippers to the  High Court and the only question that ultimately appears to  have been raised was that the direction given by the Tribunal  to the  effect  that  the  properties  should  remain  in   the management of the claimants, Sardar Raghbir Singh and Sardar Balwant  Singh, was illegal.  The High Court without  giving any  decision  on the legal question so raised  was  of  the opinion  that  it  was  no function  of  the  Sikh  Gurdwara Tribunal  to  pass  an order on an  application  made  under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises.   They  thought that the question of  right  of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest  of the decrees of the Sikh Gurdwara Tribunal is to stand.  They expressed their conclusion in the following terms: "That     portion of the decree of the Sikh Gurdwara s Tribunal which has declared the respondents’ right to manage the Gurdwaras and the properties appended thereto shall form no  part of the decree granted by the Tribunal; the rest  of the decree of the Sikh Gur- 72 dwaras Tribunal stands, that is to say, the properties which have  been declared to be the personal properties of  Sardar Raghbir  Singh and Sardar Balwant Singh shall  remain  their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras". The  High  Court  also added  that  though  the  proceedings mentioned  the  existence  of two Gurdwaras  by  name  Bunga Sarkar and Bunga Mai Mallan, the real position seemed to  be that  there was only one Gurdwara, viz.  Bunga  Sarkar,  and that  Bunga  Mai  Mallan  had no  separate  existence  as  a Gurdwara  but was a well-known part of Bunga  Sarkar.   This decision of the High Court was on the 16th June, 1936.  This was  followed by notification No. 9-G dated the  3rd  March, 1937, under section 17 of the Act which is the foundation of the present suit. On  these facts a number of contentions were raised by  both sides  before  the  High Court as well  as  before  us.  The judgment  of the High Court as well as the arguments  before us  have covered a wide range.  On the merits, the case  for the  plaintiff  is quite simple.  The  plaintiff  says  that whatever  may be the position with reference to the  earlier compromises   arrived   at  between  the  parties   in   the proceedings   under  section  5  of  the  Act,   the   later proceedings  with reference to those very  properties  under section  10 of the Act resulted in the judgment of the  High Court  dated  the 16th June 1936, which  is  conclusive  and binding.    By   virtue  of  the  said  judgment   and   the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue  of  section  25-A of the Act.  On the  side  of  the defendants various objections have been raised which may  be

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summarised as follows: (1) The proceedings under section  10 did not result in any specific declaration in favour of  the Committee that the properties in dispute in the present suit constituted  a Sikh Gurdwara or belong to a  Sikh  Gurdwara. No such declaration can-be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of 73 the High Court on appeal dated the 16th June, 1936. (2)  The Tribunal had no jurisdiction in disposing of an  application under section 10 of the Act, to give a positive  declaration that the property in question is a Sikh Gurdwara.  Its  only function was to decide whether or not the properties claimed were the private properties of the claimants.  Hence even if the  decision of the Tribunal and of the High Court  can  be treated  as  a decision declaring the properties as  a  Sikh Gurdwara  that  is  not valid and  the  notification  issued thereupon  is void. (3) Any such decision would be  contrary to section 37 of the Act and also contrary to the principles of  res judicata and would be, therefore, a nullity on  that ground. (4) The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management, in entering  into the  compromises in the proceedings under section 5  of  the Act without disclosing the pendency of the petition filed by the  55  Sikhs under section 7 of the Act,  followed  up  by their  declining  to  be  made parties  in  the  section  10 proceedings  and in virtually promoting the contest  of  the proceedings  under sections 8 and 10, was fraudulent.   They are accordingly estopped from relying on the decree obtained under  section  10  proceedings and basing  their  right  to relief  thereon. (5) The suit under section 25-A  lies  only where  the decision on an objection under section  10(1)  is reached  after the notification that the Gurdwara is a  Sikh Gurdwara  is  published  since  the  section  refers  to.  a decision  in favour of a "Notified Sikh  Gurdwara"  implying the  pre-existence of such notification. (6) The suit  under section 25-A was barred by limitation. (7) The whole  appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were not brought on record in time and  the High Court declined to excuse the delay and to  set aside the abatement, as a result of which the entire  appeal abated,  the claim against both the respondents being  joint and  not being maintainable against one only in the  absence of 10 74 the other.  In addition to these contentions which have been put forward before us and strenuously argued by both  sides, the  High  Court also based its decision on  the  view  that section 7 of the Act assumes the existence of a Gurdwara and that a notification issued under section 7 (3) without there being in fact a Gurdwara in existence would be ultra  vires. In the present case, in view of the prior proceedings  under section 5 and the compromises following thereupon, the  non- existence  of the Gurdwara as claimed in the petition  under section  7(1)  must  be  taken to have  been  made  out  and therefore the notification and all the proceedings following thereupon are illegal and ultra vires. Though we have heard elaborate arguments from both sides  on these various contentions, it appeared to us ultimately that the  plea of limitation is decisive against  the  appellants and that it is unnecessary to express any opinion on any  of the  other contentions raised.  The question  of  limitation arises with reference to the terms of section 25-A which  is as follows:

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"25-A. (1) When it has been decided under the provisions  of this  Act  that  a right, title  or  interest  in  immovable property  belongs  to  a Notified Sikh  Gurdwara  ,  or  any person,  the  Committee  of the Gurdwara  concerned  or  the person  in  whose favour a declaration has  been  made  may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever  is later,  institute  a suit before a tribunal claiming  to  be awarded  possession of the right, title or interest  in  the immovable property in question as against the parties to the previous petition, and the tribunal shall if satisfied  that the  claim  relates to the right, title or interest  in  the immovable  property  which has been held to  belong  to  the Gurdwara,  or to the person in whose favour the  declaration has been made, pass a decree for possession accordingly. (2)Notwithstanding  anything  contained in any -Act  to  the contrary,  the court-fee payable on the plaint in such  suit shall be five rupees". 75 This  section  provides,  for the filing of  the  suit,  the period of one year from the date of the decision or the date of  the  constitution of the committee whichever  is  later. Now  the date of the decision in this case must be taken  to be  the date when the High Court on appeal disposed  of  the proceedings  under  section 10, i.e., the 16th  June,  1936. The present suit has been filed on the 25th February,  1938, i.e., clearly beyond one year of the decision.  The question for  consideration,  therefore, is whether the suit  can  be said  to  have  been within one year from the  date  of  the constitution  of  the Committee of the  Gurdwara  concerned. Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate  which  is,  the Committee  concerned  with  this Gurdwara and what the date of its constitution is.   Section 85 is as follows (in so far as it is relevant): "Subject to the provisions of section 88, there shall be one committee  for  the  Gurdwaras known as  the  Darbar  Sahib, Amritsar,  and the Baba Atal Sahib, and all  other  Notified Sikh  Gurdwaras situated within the municipal boundaries  of Amritsar other than the Sri Akal Takht Sahib". Section 86 is as follows (in so far as it is relevant):  "For  every  Notified Sikh Gurdwara other than  a  Gurdwara specified  in  section 85 a committee shall  be  constituted after  it has been declared to be a Sikh Gurdwara under  the provisions of this Act". Section 88 is as follows (in so far as it is relevant): "(1)The committees described in sections 85 and 86 shall  be constituted as soon as may be after the constitution of  the Board,  provided that no committee shall be constituted  for any  gurdwara  under the provisions of this Act  unless  and until  it has been declared to be a Sikh Gurdwara under  the provisions of this Act. (2)When  all  the  members of  any  committee  described  in section  85 have been elected or co-opted, as the  case  may be,  according  to  the  provisions  of  that  section,  the Provincial  Government  shall  notify  the  fact  that   the committee has been duly constituted, 76 and the date of the publication of the notification shall be deemed to be the date of the constitution of the committee". Now, it is not disputed that the present plaintiff which  is the  Committee of Management for all the Gurdwaras  situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year  1930 and  was in fact functioning at the date of the  compromises in  the section 5 proceedings dated the 6th February,  1930.

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It  is  also not disputed that by virtue of  section  85(2), this committee also became the Committee concerned with  the suit  Gurdwara,  which  is  admittedly  located  within  the Municipal  limits of Amritsar.  But it is contended for  the appellants  that this Committee becomes concerned  with  the suit Gurdwara only from the date when the notification under section  17 is issued, i.e., from the 3rd March,  1937,  and that, therefore,, the plaintiff had one year from that  date for  the  filing  of the suit and  that  in  the  situation, section   25-A  in  providing  the  alternative  period   of limitation  as  being  "one  year  from  the  date  of   the constitution of the committee", must be construed reasonably as being one year from the date of the notification in  such a  case and that for the purposes of this section, the  pre- existing  committee must be deemed to have been  constituted for the suit Gurdwara only on the date of the  notification. In  support of this contention it has been pointed out  that the  specific policy of the Act as disclosed in sections  86 and  88 is that no Committee is to be formed for a  Gurdwara until after’ it has been declared a Sikh Gurdwara under  the provisions  of  the Act.  It is accordingly urged  that  the phrase  "constitution  of  the committee"  in  section  25-A should  be construed so as to indicate a point of  time  not earlier than the notification of the concerned Gurdwara  and that in the circumstances and in such cases the date of  the notification  of  the  Gurdwara  must be  the  date  of  the constitution of the concerned committee.  It appears to  us, however,  that this contention is untenable.  Section 86  in terms  relates  to  a  Notified  Sikh  Gurdwara  other  than Gurdwaras 77 specified  in  section  85.  Hence so  far  as  our  present purpose is concerned, the policy underlying section 86  does not necessarily apply to the Gurdwaras within the  Municipal limits  of  Amritsar for which a Committee  already  exists. Moreover,  sub-section  (2)  of  section  88  provides  with reference  to Committees under section 85, that, as soon  as all  the members described therein have been elected or  co- opted,  the fact should be duly notified, and also  declares in  clear  and  categorical  terms  that  the  date  of  the publication  of the notification shall be deemed to  be  the date  of the constitution of the Committee.  In the face  of this  deeming provision relating to these committees, it  is not permissible to impute to such a Committee any other date as  the date of its constitution for any of the purposes  of the  Act  and to imply an exception and an addendum  to  the specific deeming provision.  This would be legislating.   We cannot,  therefore, accept the contention of  the  appellant that  the date of the notification under section 17  in  the present  case  should  be  deemed to  be  the  date  of  the constitution of the Committee concerned for the purposes  of section 25-A.  It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation  and that in a case where no  notification  under section 17 has been issued until after the expiry of an year from  the  date  of the final  decision  that  the  Gurdwara claimed  is a Sikh Gurdwara, the remedy under  section  25-A would  become inapplicable.  It may be that  an  exceptional case  of undue delay in the publication of the  notification may be a casus omissus but such a delay need not be  assumed to  be  a matter of course.  That, at any rate, is  not  the present  case  where  the notification was  in  fact  issued within  nine months of the decision of the High Court.   The Committee  which  should have been alert with  reference  to these matters, had, not only the whole of these nine  months

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to  take  steps to get the notification  published  earlier, but, it had three months thereafter to come forward with the present suit.  However this may be, we do not consider  that there is any question of hardship, 78 because  obviously section 25-A is only an enabling  section providing  a  cheap  remedy  by way of  a  suit  before  the Tribunal  itself.   We are clearly of the opinion  that  the present suit under section 25-A is barred by limitation  and on this ground the appeal must fail. The appeal is accordingly dismissed with costs.                Appeal dismissed.