The Supreme Court recently in its judgment in Mahant Jawala Singh Chela of Mahant Bishan Singh (Dead) Through Legal Representative v. The Shiromani Gurdwara Prabhandhak Committee, Amritsar has set aside the decision passed in 1982 of the Punjab and Haryana High Court which had declared that Gurdwara Sri Guru Granth Sahib situated within the revenue estate of village Jalal, Tehsil and District Bhatinda was a "Sikh Gurdwara", thus giving finality to a dispute pending since 1963.
The dispute arose when "Fifty-three persons claiming to be Sikh worshippers submitted a petition to the State Government ... for declaring the institution in question as a Sikh Gurdwara" and the State Government constituted a Tribunal to get the issue decided. The Tribunal had upheld the claim and declared the institution to be a State Gurudwara and this finding was affirmed by the High Court. The Supreme Court, however, was not impressed. Being of the view that "the findings recorded by the Tribunal and the High Court on the question of use of the institution for worship by Sikhs are too sketchy", the Court set aside the concurrent decisions of the Tribunal and the High Court.
The Supreme Court, discussed the provisions of law and factual position inter alia in the following terms;
22. Section 16 of the Act has received fair amount of judicial consideration and it has been repeatedly held by the Courts that before the Tribunal can declare an institution to be a Sikh Gurdwara under Section 16(2)(iii), it must be satisfied that (a) the institution was established for use by Sikhs for the purpose of public worship, and (b) was used for such worship by Sikhs before and at the time of presentation of the petition under Section 7(1). These two conditions are required to be fulfilled separately and conjointly and unless that is done, the Tribunal cannot declare an institution to be a Sikh Gurdwara. In other words, a person seeking a declaration that the particular institution is a Sikh Gurdwara, he must satisfy the Tribunal that the institution was established for use by Sikhs for the purpose of public worship and that the same was used as such before and at the time of presentation of the petition under Section 7(1) of the Act. If he fails to prove either of the conditions, the Tribunal cannot declare the institution as a Sikh Gurdwara. In this connection, reference may be made to the judgments of the Lahore High Court in Lachhman Dass and others v. Atma Singh and others (supra) and of this Court in S.G.P.C. v. M.P. Dass Chella (supra), Shiromani Gurdwara Parbandhak Committee, Amritsar v. Bagga Singh (2003) 1 SCC 619, Shiromani Gurdwara Parbandhak Committee v. Mahant Harnam Singh (2003) 11 SCC 377 and Shiromani Gurdwara Parbandhak Committee v. Mahant Prem Dass (2009) 15 SCC 381.
23. It is also a settled law that the onus to prove that an institution is a Sikh Gurdwara lies on the person who asserts the same. If Shiromani Gurdwara Parbandhak Committee comes forward to support the plea or espouse the cause of the one who files petition under Section 7(1) that the particular institution is a Sikh Gurdwara and is liable to be declared as such under Section 16(2)(iii) of the Act, then the burden to prove the two conditions is on the Committee. If it fails to fulfill either of the conditions, the Tribunal does not get the jurisdiction to declare the institution as a Sikh Gurdwara – S.G.P.C. v. M.P. Dass Chella (supra) and Shiromani Gurdwara Parbandhak Committee v. Mahant Prem Dass (supra).
xxx
26. In Pritam Dass v. Shiromani Gurdwara Parbandhak Committee (1984) 2 SCC 600, a three-Judge Bench of this Court was called upon to consider whether the religious institution in dispute, which was situated in village Ramgarh (also known as Bhagtuana), Tehsil Faridkot, District Bhatinda was a Sikh Gurdwara. Sixty-five persons claiming to be members of the Sikh community filed a petition under Section 7(1) of the Act for declaring the institution to be a Sikh Gurdwara. The State Government notified the application under Section 7(3) of the Act. Thereupon, the appellant filed an application under Sections 8 and 10 claiming that the institution was not a Sikh Gurdwara but an Udasi institution known as Dera Bhai Bhagtu. The respondent contested the application. The Tribunal held that the institution was a Sikh Gurdwara. The High Court confirmed the findings of the Tribunal and dismissed the appeal. This Court referred to the distinctive features of Sikh Gurdwaras, the judgments in Mahant Harnam Singh v. Gurdiyal Singh (supra), Mahant Dharam Dass v. State of Punjab (1975) 1 SCC 343 and held that the Tribunal and the High Court had not examined the issues raised by the parties in a correct perspective and ignored Section 16(2). The Court then proceeded to analyze the evidence and observed:
“What emerges from this discussion is that as found by the Tribunal, the succession was from Guru to Chela; that Bhai Bhagtu was an Udasi saint and there are Samadhs on the premises — one of Bhai Bhagtu and the other of his mother. 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 the character of the institution as a Sikh gurdwara because they are inconsistent with the tenets of the Sikh religion. …………. Counsel for the respondent emphasised 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 midway 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.”
27. In Shiromani Gurdwara Prabhandhak Committee v. Mahant Kirpa Ram (1984) 2 SCC 614, another three-Judge Bench relied upon the judgment in Mahant Dharam Dass v. State of Punjab (supra) and Pritam Dass v. Shiromani Gurdwara Parbandhak Committee (supra) and held:
“It must be conceded that nearly a century after the setting up of the institution, Granth Sahib was venerated and read in this institution. Does it provide conclusive evidence that the institution was set up and used for public worship by Sikhs? In order to bring the case under Section l6(2)(iii) it must not only be established that the institution was established for use by Sikhs for the purpose of public worship but was used for such worship by Sikhs before and at the time of the presentation of the petition. The use of the conjunctive “and” clearly imports that in order to attract Section 16(2) (iii) , both the conditions must be cumulatively satisfied. Not only that it must be satisfactorily established that the institution was established for use by Sikhs for the purpose of public worship but was used for such worship by the Sikhs before and at the time of the presentation of the petition. It was so held in Gurmukh Singh v. Risaldar Deva Singh and in our opinion that represents the correct interpretation of Section 16(2)(iii). In this case there is no evidence to show that the institution was established for use by Sikhs for the purpose of public worship. It must be conceded that the institution may be established by anyone, may be a Sikh or follower of any other faith, but it must be established for use by Sikhs for the purpose of public worship. One can therefore, ignore the fact that the original grantor was a Muslim ruler Rai Kalha but there is nothing to show that when Gulabdas Faquir of Udasi Sect established the institution, he did it for use by Sikhs for the purpose of public worship. Later on as the majority of the population of the village was follower of Sikh religion and as Udasis also venerate Granth Sahib, reading of Granth Sahib may have commenced and therefore, generally speaking people may describe and revenue record may show it to be Gurdwara but that would neither be decisive of the character of the institution nor sufficient to bring the institution within Section 16(2)(iii) of the Act.”
28. In Uttam Das v. Shiromani Gurdwara Parbandhak Committee (1996) 5 SCC 71, this Court reiterated that the Udasis are a sect distinct from the Sikhs and the mere fact that they recite Guru Granth Sahib in the presence of Sikh congregation is not by itself sufficient to declare the institution to be a Sikh Gurdwara unless it is proved that the same was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs as per the requirement of Section 16(2)(iii) of the Act.
29. In S.G.P.C. v. M.P. Dass Chela (supra), this Court considered the question whether the entries in jamabandi register and mutation register to the effect that Dera Guru Granth Sahib is the owner proves that the institution was established for use by Sikhs for the public purpose and the same was used for such worship by Sikhs and answered the same in negative. In that case, an application was made by sixty persons claiming to be worshippers of Gurdwara Dera Lang Shri Guru Granth Sahib situated within the revenue estate of village Sardargarh, Tehsil and District Bhatinda under Section 7(1) of the Act. On publication of the notification under Section 7(3), Mahant Puran Dass filed a petition under Section 8 of the Act claiming that the institution was not a Sikh Gurdwara but was a Dera of Udasi sadhus. The Tribunal impleaded the appellant as a party in that petition. After considering the evidence adduced by both the parties, the Tribunal held that the respondent was not a hereditary office-holder and had no right to file petition under Section 8. The Tribunal also held that the institution in question is a Sikh Gurdwara within the meaning of Section 16(2)(iii) of the Act. On appeal, two Judges of the High Court constituting the Division Bench expressed divergent opinions. When the matter was referred to the third Judge, he agreed with one of the Judges that the respondent was a hereditary officeholder and that the institution in question was not a Sikh Gurdwara. This Court approved the view expressed by the majority and observed:
“It is quite evident from the language of Section 16(2) that the burden of proving an institution to be a Sikh gurdwara is on the person who asserts the same. Significantly in this case, none of the sixty persons who presented the petition under Section 7(1) has chosen to enter the witness box and give evidence in support thereof. There is no explanation for the same. The oral evidence adduced on behalf of the appellant has not inspired even the Tribunal. All that is relied on by the appellant is the entry in Jamabandi Register and Mutation Register. The entries in those registers are to the effect that Dera Guru Granth Sahib is the owner. Those entries can hardly prove either the purpose of establishment of the institution or the use thereof before and at the time of the petition under Section 7(1) of the Act. Tiwana, J. has himself pointed out that the appellant herein who was the respondent before him was not in a position to furnish any direct evidence that it is a Sikh gurudwara. On the other hand, the entries in Ex. R-14, containing the proceedings of the Settlement Commissioner held in 1903 prove beyond doubt that the institution is not a Sikh gurdwara. Column 2 thereof shows that the original donor was Sardar Jodh Singh Saboke and the donee was Khem Dass Faqir Udasi. Column 9 refers to Guru Granth Sahib (Dera Lang) under the management of Jawahar Dass, chela Gian Dass Udasi of the village. Column 20 contains the report of the Superintendent. That shows that the muafi was granted by Sardar Jodh Singh of Sobo for expenses of the building of Sawara Guru Granth Sahib. The opinion of the Assistant Settlement Officer is set out in Column 21. The order of the Settlement Commissioner dated 1-5-1903 in Column 22 reads thus: “Muafi as detailed continued to the Lang Dera in the name of the custodian for the time being.” Thus it is clear that the institution was not established for use by Sikhs.”
30. In Shiromani Gurdwara Parbandhak Committee, Amritsar v. Bagga Singh (supra), this Court held that reading of Granth Sahib or veneration of Sikh scriptures in an institution of Udasi sect cannot lead to an inference that it is a Sikh Gurdwara.
xxx
36. At this stage, it is appropriate to mention that the findings recorded by the Tribunal and the High Court have been extracted in detail only to demonstrate how mis-directed consideration of the issues raised by the parties has resulted in recording of patently erroneous conclusions and miscarriage of justice. A reading of the Tribunal’s order shows that it recorded satisfaction with reference to first part of Section 16(2)(iii) primarily by relying upon the entries made in khataunis and jamabandis in which Guru Granth Sahib is described as the owner of land and Baba Bishan Singh Chela of Baba Gulab Singh is shown as nonoccupancy/ gair maurisi tenant. The Tribunal also attached considerable importance to use of the words “Deh Hazah” after the words Guru Granth Sahib and Gurdwara Sahib and the fact that muafi was granted in perpetuity on 14th Phagan, Samvat 1912 for the purpose of meeting the expenses of Dhup Deep and also for serving food etc. to Sadhus and wayfarers on their visit to the institution. Another factor relied upon by the Tribunal was that the institution was established by Baba Kharak Singh, who was a dedicated Sikh and this was done by him for the purpose of public worship of Guru Granth Sahib. In this process, the Tribunal completely lost sight of the fact that all the witnesses examined on behalf of the respondent spoke about establishment of the institution in dispute in the memory of the visit of Tenth Guru and his stay in the village for a few days on his way from Dina to Lambwali and none of them said a word about establishment of Gudwara by Baba Kharak Singh. Of course, as mentioned above, the High Court altogether discarded the theory that the Gurdwara was established by or in the memory of Baba Kharak Singh. The revenue records produced by the respondent did show that Guru Granth Sahib was recorded as owner, but neither the khataunis nor jamabandis could be made basis for recording a finding that the institution was established for use by Sikhs for the purpose of public worship. The entries in the revenue records may be relevant for determining title and possessory rights over lands mentioned therein but the same could not be relied upon for recording a finding that the institution to which land belongs was established by the particular individual for a particular purpose. The emphasis placed by the Tribunal and the High Court on the entries made in the different revenue records and the fact that Muafi was given for meeting the expenses of Dhoop Deep was clearly misplaced. Both the Tribunal and the High Court appear to be obsessed with the idea that when Guru Granth Sahib is recorded as the owner of land in the khatauni and the jamabandis and Prakash is being done in front of Guru Granth Sahib, the institution must have been established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs. This approach was clearly erroneous and the findings recorded by the Tribunal and the High Court, though concurrent are liable to be set aside being contrary to the law laid down by this Court.
xxx
38. The findings recorded by the Tribunal and the High Court on the question of use of the institution for worship by Sikhs are too sketchy. The only statement made by the witnesses examined by the respondent was that sometimes the residents go for worship of Guru Granth Sahib. In our view, in the absence of any evidence to show that the institution was established for use by Sikhs for the purpose of public worship, the Tribunal did not have the jurisdiction to declare it to be a Sikh Gurdwara by simply relying upon the entries in the revenue records or the fact that Prakash of Guru Granth Sahib is done and on some occasion people come to worship Guru Granth Sahib and the High Court committed serious error by dismissing the appeal.
No comments:
Post a Comment