Supreme Court of India
MAHANT JAWALA SINGH CHELA OF MAHANT BISHAN SINGH (DEAD) THROUGH LEGAL REPRESENTATIVEversusTHE SHIROMANI GURDWARA PRABHANDHAK COMMITIEE, AMRITSAR
- Citation
- 2011 INSC 39
- Decided
- 12 January 2011
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The Tribunal and High Court erred; without proof that the institution was established for Sikh public worship and used as such before and at the time of the petition, it cannot be declared a Sikh Gurdwara.
Summary
Fifty‑three Sikh worshippers petitioned under Section 7(1) of the Sikh Gurdwaras Act, 1925 to have Gurdwara Sri Guru Granth Sahib in Jalal, Bhatinda declared a Sikh Gurdwara. The appellant, Mahant Jawala Singh, filed a petition under Section 8 claiming the institution was a Nirmala Dera, not established for Sikh public worship. The Sikh Gurdwara Tribunal, relying on revenue records and the presence of the Guru Granth Sahib, declared it a Sikh Gurdwara; the Punjab‑Haryana High Court upheld that decision. On appeal, the Supreme Court held that the Tribunal and the High Court failed to satisfy the two statutory conditions of Section 16(2)(iii) – that the institution must have been established for Sikh public worship and used as such before and at the time of the petition – and that the burden of proof lies on the party asserting the declaration. In the absence of evidence proving these conditions, the declaration was unsustainable. The Court set aside the Tribunal’s and High Court’s orders and allowed the appeal.
Issues considered
- The Tribunal’s jurisdiction to declare the institution a Sikh Gurdwara under Section 16(2)(iii) of the Sikh Gurdwaras Act, 1925.
- Whether the two statutory conditions – establishment for Sikh public worship and actual use by Sikhs before and at the time of the petition – were satisfied.
- The allocation of the burden of proof for establishing an institution as a Sikh Gurdwara.
Legislation cited
- Places of Worship (Special Provisions) Act, 1991s. 4
- Sikh Gurdwaras Act, 1925s. 15(2)(iii), s. 16(2)(iii), s. 16(2)(iv), s. 4, s. 7(1), s. 8
Subjects
Sikh Gurdwaras ActSection 16(2)(iii)declaration of Sikh Gurdwaraburden of proofpublic worshipNirmala secttribunal jurisdictionreligious institution
Judgment
[2011) 2 S.C.R. 69
MAHANT JAWALA SINGH CHELA OF MAHANT BISHAN A
SINGH (DEAD) THROUGH LEGAL REPRESENTATIVE
V.
THE SHIROMANI GURDWARA PRABHANDHAK
COMMITIEE, AMRITSAR
(Civil Appeal No. 6386. of 1983) 8
JANUARY 12, 2011
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Sikh Gurdwaras Act, 1925: c
s. 7(1 ), 8 and 16(2)(iii) - Declaration of an institution-
Gurdwara Sri Guru . Granth Sahib as a Sikh Gurdwara . -
Challenge to - Tribunal and the High Court holding that the
institution is a Sikh Gurdwara - Sustainability of - Held: Not D
sustainable - Findings recorded by the Tribunal and the High
.Court on the use of the institution for worship by Sikhs too
sketchy :"" 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 h!lve the jU(isdiction to E
declare it to be a Sikh Gurdwara - Tribunal simply relied 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 - More so, fifty.:three
persons who filed petition uls. 7(1) for declaring the institution F
as a Sikh Gurdwara did not support their plea - There was
assertion by some· of the petitioners who filed petition uls. 8
seeking declaration that Dera was not a Sikh Gurdwara that
their signatures were obtained by fraud - Respondent,
Shiromani Gurdwara Prabhandhak Committee who
impleaded itself and contested the petition filed u/s. 8, was G
silent on the twin requirements of s. 16(2)(iii) and did not
examine any of them - Thus, order passed by the Tribunal
as upheld by the High Court declaring the institution as a Sikh
Gurdwara set aside.
69 H
70 SUPREME COURT R:PORTS (2011] 2 S.C.R.
A ss. 16(2)(iii) and 7(1) - Declaration of an institution as a
Sikh Gurdwara - Conditions to be fulfilled - Held: A person
seeking such declaration 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
B and at the time of presentation of the petition u/s. 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 - Onus to prove that an
institution is a Sikh Gurdwara lies on the person who asserls
c the same.
Fifty three persons claiming to be Sikh worshippers
submitted a petition to the State Government under
Section 7(1) of the Sikh Gurdwaras Act, 1925 for declaring
the Gurdwara Sri Guru Granth Sahib situated within the
D revenue estate of village Jalal, Tehsil and District
Bhatinda as a Sikh Gurdwara. Thereafter, separate
petitions were filed under Section 8 of the Act. One of the
petition was filed by the appellant, the hereditary office
holder of the said Dera praying that the said Cera may
E not be declared as a Sikh Gurdwara. The State
Government forwarded the petitions to the Tribunal. The
Tribunal issued notices to all the persons who had
submitted a petition under Section 7(1) but none of them
appeared to contest the petitions filed under Section 8 of
F the Act. The respondent-Shiromanl Gurudwara
Prabandhak Committee got itself lmpleaded as party to
the proceedings pending before the Tribunal. They filed
a written statement questioning the maintainability of the
petition filed by the appellant. The Tribunal relying on the
G entries contained in the revenue records held that the
institution is a Sikh Gurudwara. The High Court upheld
the order passed by the Tribunal. Therefore, the appellant
filed the instant appeal.
Allowing the appeal, the Court
H
MAHANT JAWALASINGH v. SHIROMANI GURDWARA 71
PRABHANDHAK COMMITIEE
HELO: 1.1 Before the Tribunal can declare an A
institution to be a Sikh Gurdwara under Section 15(2)(ili)
of the Sikh Gurdwara's Act 1925, 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 B
qf 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. [Para 22] [103-G-H; 104-
A-B] C
Lachhman Dass and Ors. v. Atma Singh and Ors. AIR
1935 Lahore 666; Shiromani Gurdwara Parbandhak
Committee, Amritsar v. Bagga Singh (2003) 1 SCC 619,
Shiromani Gurdwara Parbandhak Committee v. Mahant
Harnam Singh (2003) 11 SCC 377; Shiromani Gurdwara D
Parbandhak Committee v. Mahant Prem Dass (2009) 15
sec 381 - referred to.
1.2 The onus to prove that an institution is a Sikh
Gurdwara lies on the person who asserts the same. If E
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, F
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. [Para 23] [104-E-G]
Sh/r.)mani Gurdwara Parbandhak Committee v.sss G
Mahant Pretfl f1ass 2009 (15) SCC 318 - relied on.
Kirpa Singh v. Ajaypa/ Singh AIR 1930 Lahore 1;
Mahant Harnam Singh v. Gurdiya/ Singh AIR 1967 SC 1415;
Pritam Dass v. Shiroirlani Gurdwara p~1Jandhak Committee . H
72 SUPREME COURT REPORTS [2011] 2 S.C.R.
A (1984) 2 SCC 600; Mahant Dharam Dass v. State of Punjab
(1975) 1 SCC 343; Shlromani Gurdwara Prabhandhak
Committee v. Mahant Kirpa Ram (1984) 2 sec 614; Uttam
Das v. Shiromani Gurdwara Parbandhak Committee (1996)
5 sec 71 - referred to.
B
2.1 Nona of the fifty-three persons who submitted
petition under Section 7(1) of the Act for declaring the
Institution In question as a Sikh Gurdwara responded to
the notice issued by the Tribunal or appeared before It
C to support their plea. Rather, some of them filed petition
under Section 8 asserting that their signatures were
obtained by fraud and at least four of them filed affidavits
in support of that assertion. It is a different thing that they
did not pursue the petition filed under Section 8, which
was dismissed in default and the Tribunal erroneously
D discarded the affidavits by observing that they were not
examined by the appellant. As a matter of fact, it was for
the respondent to examine those fifty-three persons or
at least some of them. Unfortunately, the Tribunal and the
High Court did not direct their attention towards this
E important omission and decided the matter by relying
upon the oral evidence of those who were not party to
the petition filed under Section 7(1) and the revenue
records produced by the respondent. [Para 32] [115-8-
0]
F
2.2 The written statement filed by the respondent was
conspicuously silent on the twin requirements of Section
16(2)(iii) of the Act. In the written statement filed on behalf
of the respondent, it was pleaded that Gurdwara in
dispute was established in the memory of Baba Kharak
G Singh, who was a Sikh saint or in the alternative it was
established by him for worship by Sikhs and has been
so used by Sikhs, that the case falls either under Section
16(2)(iii) or 16(2)(1v) [erroneously written as 16(2)(3) or
16(2)(4)] and that existence of Samadhl does not alter the
H
MAHANT JAWALASINGH v. SHIROMANI GURDWARA 73
PRABHANDHAK COMMITTEE
nature of the Institution. In the amended written statement, A
the case originally pleaded was given up and an
altogether new case was set up by asserting that the
Gurdwara In dispute was built In the memory of the visit
of Tenth Guru who came to this place from Dina and
Lohagarh and stayed there for some time and that the B
Gurdwara Is being used as a place of worship by Sikhs
on account of the traditional visit of Tenth Guru. Although,
in the amended written statement reference was not
made to Section 16(2)(1v), the averments contained
clearly suggests that the respondent wanted the c
institution to be declared as a Sikh Gurdwara with
reference to that Section. A casual reference was also
made to Section 16(2)(iii) by incorporating the following
words: "or in the alternative under Section 1G(2)(iii)" [Para
33] [115-E-H; 11GftA-C] D
2.3 The Tribunal did not accept the· plea of the
respondent that the Gurdwara was built in the memory
of the visit of Tenth Guru and held that Section 16(2)(iv)
is not attracted in the case. The Tribunal then adverted
to the two conditions required to be fulfilled before an E
institution can be declared to be a Sikh Gurdwara. As a
result to this, the Tribunal made detailed analysis of the
evidence produced by the respondent and held that the
institution was established by Baba Kharak Singh, a Sikh
gentleman of piety and prestige in the illaqa for the Sikhs F
for the purpose of pubic worship of Shri Guru Granth
Sahib. While recording the said finding, the Tribunal
overlooked the fact that in the amended written statement
th 0 respondent had altogether given up the plea that
Baba Kharak Singh was a Sikh saint and Gurdwara in G
dispute was established in his memory or in the
alternative it was established by him for worship by
Sikhs. The High Court altogether discarded the plea that
Baba Kharak Singh had founded the institution by
observing that there was no ev!~:mce of any type; oral H
74 SUPREME COURT REPORTS [2011] 2 S.C.R.
A or documentary of the time of establlshment of the
institution pointing to the purpose of its establishment.
These contradictions in the findings of the Tribunal and
the High Court are too prominent to be overlooked. [Para
34] [116-C-G]
B
2.4 The Tribunal and the High Court also became
oblivious of the fact that even though in the amended
written statement filed on behalf of the respondent, an
alternative plea was taken for treating the institution in
C dispute as a Sikh Gurdwara under Section 16(2)(iii), but
no foundation was laid for raising that plea inasmuch as
there was no averment that the Gurdwara was
established in the particular year by the particular
individual or a group of persons for use by Sikhs for the
purpose of public worship and was used for su"n
D worship by Sikhs before and at the time of presentation
of petition under Section 7(1 ). The manner in which the
Tribunal analyzed the avidence produced by the parties
gives an impression that it had assumed that a specific
case had been set up by the respondent in the context
E of Section 16{2)(iii) of the Act. In the absence of basic
pleadings, the Tribunal was not, at all, justified in
examining the issue whether the Gurdwara is a Sikh
Gurdwara within the meaning of Section 16(2)(iii) and the
findings recorded by it with reference to twin
F requirements embodied in that section are liable to be
treated as non est. Unfortunately, the Division Bench of
the High Court also overlooked this fatal flaw in the case
put forward by the respondent and thereby compounded
the grave error committed by the Tribunal. [Para 35] [116-
G Ii; 117-A-D]
2.5 The findings recorded by the Tribunal and the
High Court demonstrate how mis-directed consideration
of the issues raised by the parties resulted in recording
of patently erroneous conclusions and miscarriage of
H
MAHANT JAWALASINGH v. SHIROMANI GURDWARA
I
75
• PRABHANDHAK COMMITTEE
justice. A reading of the Tribunal's order shows that it A
recorded satisfaction with reference to first part of Section
16(2)(iii) primarily by relying upon the entries made in
khata.unis and jamabandis in which Guru Granth Sahib
is described as the owner of land and Baba Bishan Singh
Chela of Baba Guiab Singh is shown as non-occupancy/ B
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 c
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 Sik_h and this was done by him for the 0
p~rpose 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 E
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 Kl)arak Sln_gh. 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 F
show that Guru Gralith Sahib was recorded as owner, but
neither ttfe khataunis nor jamabandis could be made
basis for recording a finding that the institution was
established for use by Slk.hs for the purpose of public
. worship. The· entries in the. revenue records· may be G
relevant for determining title and possessoiy rights over
lands mentioned therein but the same could not be relied
upon for recording a finding that the in.stitutiQn to which
land belongs was established by the particular Individual
H
76 SUPREME COURT REPORTS [2011) 2 S.C.R.
A 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
B 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
c 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. [Para 36] [117-E-H; 118-A-G]
D 2.6 The Tribunal and the High Court have not given
due weightage to the evidence, oral and documentary
produced by the appellant. The appellant, JS-PW-8 and
seven witnesses examined by him consistently stat~d
that the institution, that is, the Dera was established-==by
E Nirmala faquir and Baba Bishan Singh was its first
Mahant. The various report show that Maharaja Bharpur
Singh had given 56 Ghumaons of land to Bhai Bir Singh
in Sammat 1913. It is also borne out that in Samvat 1914,
the land in both the patties was given by Maharaja
F Bharpur Singh to Bhai Bir Singh on periodical lease. In
the report of Tehsildar, Phul it was noted that there is no
mention regarding the ownership but inquiry from
Lambardar revealed that the ownership was of Bhai Bir
Singh who was shown as Nirmal Sadhu. In the report of
G Revenue Superintendent, there Is a mention of Dera on
the land and as per the instructions given by the
government on 29th Poh Samvat 1954, the entry in the
column of ownership was to be made in the name of Dera
Granth Sahib as per the desire of real owners. It was also
H . indicated that the Sadhus residing in the Dera shall have
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 77
PRABHANDHAK COMMITIEE .
no right to sell and mortgage the land. The muafi was A
granted by Maharaja Bharpur Singh for dharamarth, to
meet expenses of Sadhus and poor. The last order
passed by the Maharaja shows that entry regarding
ownership of the Dera was to be made as proposed at
the time of settlement. Unfortunately, the High Court B
brushed aside the documentary evidence produced by
the appellant by recording one line observation that his
counsel could not establish its relevance. While hearing
the appeal, it was duty of the High Court to have adverted
to the various documents and then determined their c
relevance. [Para 37] [118-H; 119-A-G]
2.7 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 D
that sometimes the residents go for worship of Guru
Granth Sahib. 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 E
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. The declaration made by the F
Tribunal that the institution in question is a Sikh
Gurdwara is also set aside. [Paras 38 and 40] [119-H; 120-
A-C-E] .
Banta Singh v. Gurdwara Sahib Dasvi Patshai and G
another Civil Appeal No. 446 of 1962 decided by S.C. on
09.11.1964; Ram Parshad and others v. Shiromani Gurdwara
Parbandhak Comm(ttee, Amritsar and others AIR 1931
Lahore 161; Arjan Singh and another v. lnder Dass and
another AIR 1934 Lahore 13; Maghar Singh and others v. H
78 SUPREME COURT REPORTS (2011] 2 S.C.R.
.A Hardit Dass AIR 1935 Lahore 879; Santa Singh and others
v. Puran Dass and others AIR 1936 Lahore 216; Hardit Dass
v. Gurdit Singh and another AIR 1936 Lahore 819; Dial
Singh v. Bhagat Ram and others AIR 1936 Lahore 822;
Hamam Dass v. Kartar Singh and another AIR 1936 Lahore
B 825; lshar Dass v. Bhagwan Singh and another AIR 1936
Lahore 841; Mukand Singh v. Puran Dass AIR 1936 Lahore
924; Arjan Singh and another v. Harbhajan Dass and another
. AIR 1937 Lahore 280; Hem Singh and others v. Basant Dass
and others AIR 1936 PC 93 - Referred to.
c Case Law Reference:
. AIR (1931) Lahore 161 Referred to Para 13
AIR (1934) Lahore 13 Referred to Para 13
D . AIR (1935) Lahore 666 Referred to Para 13 and
22
AIR (1935) .Lahore 879 Refe~red to Para 13
AIR (1936) Lahore 216 Referred to Para 13
E ·AIR (1936) Lahore 819 Referred to Para 13
. AIR (1936) Lahore 822 Referred to Para 13
AIR (1936) Lahore 825 Referred to Para 13
F AIR (1936) Lahore 814 Referred to Para 13
AIR (1936) Lahore 924 Referred to Para 13
AIR (1937) Lahore 280 Referred to Para 13
'
AIR (1936) PC 93 Referred to Para 13
G·
AIR (1967) SC 1415 Referred to Para 13,25
and 26
c2003) 1 sec 619 Referred to Para 22 and
30
. H.
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 79
PRABHANDHAK COMMITIEE
(2003) 11 sec 377 Referred to Para 22 A
c2009) 1s sec 381 Relied on Para 23
AIR (1930) Lahore 1 Referred to · Para 24
(1984) 2 sec 600 Referred to Para 26 and B
27
(1975) 1 sec 343 Referred to Para 26 and
. 27
(1984) 2 sec 614 Referred to Para 27 c
(1996) s sec 11 Referred to Para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6386 of 1983.
D
From the Judgment & Order dated 13.09.1982 of the High
Court of Punjab and Haryana at Chandigarh in Regular First
Appeal No. 380 of 1972.
Sarvesh Bisaria, P.C. Sharma, Dr. Sita Ram Sharma (for
S. Usha Reddy) for the Appellants. E
Jaspal Singh, Alok Prakash, Madhu Mooichanda~i for the
Respondent.
The Judgment of the Court was delivered by
F
G.S. SINGHVI, J. 1. This appeal is directed against
judgment dated 13.9.1982 of the Division Bench of the Punjab
and Haryana High Court whereby the appeal preferred by
Mahant Jawala Singh (the appellant herein), who died during
the pendency of the appeal before the High Court and is now G
represented by his legal representative against the order
passed by Sikh Gurdwara Tribunal, Chandigarh (for short, 'the
Tribunal') declaring Gurdwara Sri Guru Granth Sahib situated
within the revenue estate of village Jalal, Tehsil and District
H
80 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Bhatinda as a Sikh Gurdwara was dismissed.
2. Fifty-three persons claiming to be Sikh worshippers
submitted a petition to the State Government under Section 7(1)
of the Sikh Gurdwaras Act, 1925 (for short, 'the Act') for
declaring the institution in question as a Sikh Gurdwara was
8
published in the Punjab Government Gazette vide notification
No.385-G.P. dated 25.1.1963 issued under Section 7(3) of the
Act. In response to the aforesaid notification, four separate
petitions were filed under Section 8 of the Act. One of the
petitions was filed by the appellant. In paragraphs 2, 3 and 5
C of his petition, the appellant averred as under:
'"(2) That the petitioner is a hereditary office-holder of the
said Dera and is above 21 years of age and is thus entitled
to forward this petition under Section 8 of the Act.
D
(3) That the said Dera now described as Gurdwara Sri
Guru Granth Sahib in the above-said Notification is not at
all a Sikh Gurdwara. It was not 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 or in memory
E
of any Sikh Martyr, Saint or Historical person and has
never been used for public worship by Sikhs owing to any
tradition connected with any of the ten Sikh Gurus or the
Sikh religion nor was established for use by Sikhs for
. purposes of public worship at any time before or at the time
F of the presentation of the petition under sub-section (1) of
Section 7 of the Act. In short none of the ingredients
mentioned in Section 16 of the Act applied to the said
Dera.
G On the other hand, the institution in question is only
· a Dera known as 'Wada Dera Jalal'. It was founded and
established by Baba Kharak Singh, a Nirmala Sadhu long
long ago. Baba Kharak Singh was a religious and pious
person and was very much revered in the Haqa. He
H
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA · 81
PRABHANDHAK COMMITTEE [G.S. SINGHVI, J.] ·
established the said Dera to serve as a resting place for A
Nirmala Sadhus and to impart religious teachings to the
disciples. It was. neither established for use by Sikhs for
the purpose of public worship nor was it used for such
worship by the Sikhs at any time. The said Dera is partly
a religious and partly a charitable institution of a private . 8
nature. Guru Granth Sahib Ji is held in great reverence by
the Nirmalas. Therefore, the same is opened in one room
of the Dera for recitation to the Nirmala Sadhus - The
Samadhies of the previous Mahants also exist which are
also the objects ofworship by the disciples of the previous c
Mahants. The said Dera is not a Sikh Gurdwara, but is only
a Nirmala
. institution. Nirmalas are not Sikhs as defined in
/
the said Act.
(5) That the signatures of the persons on the petition under
Section 7(1) of the Act were obtained by the employees D
of the Shiromani Gurdwara Parbandhak Committee,
Amritsar fraudulently representing that the Shiromani
Gurdwara Parbandhak Committee, Amritsar was going to
request the Punjab State· Government to grant annual .
Jagirs to all the religious institutions situate in erstwhile E
Pepsu, hence they should subscribe their signatures on the
paper. Most of the signatures are only bogus. As a matter
of fact, the said persons, never applied for declaring the
said Dera to be a Sikh Gurdwara."
F
3. Of the remaining three petitions, two were filed by
different sets of the worshippers of the institution. The fourth
petition was filed by some of the persons whose names
appeared in notification dated 25.1.1963. They claimed that
·their signatures were obtained by fraud and prayed that the G
Dera in question may not be declared as Sikh. Gurdwara.
4. All the petitions were forwarded by the State
Government to the Tribunal constituted under Section 14(1) of
the Act. The Tribunal issued notices to all the persons who
originally moved the State Government under Section 7(1) but H
82 SUPREME COURT REPORTS [2011] 2 S.C.R.
A none of them appeared to contest the petitions filed under
Section 8. Respondent - Shiromani Gurdwara Prabandhak
Committee got itself impleaded as party to the proceedings
pending before the Tribunal and filed written statement
questioning the very maintainability of the petition filed by the
B appellant on the ground that he was not a hereditary office-
holder and the petition does not disclose the custom relating
to devolution of Mahantship in this Gurdwara. In paragraph 3
of the reply, the following averments were made:
"Para No.3 is right, in this respect that Baba Kharak Singh
c is a Sikh saint and the Gurdwara in dispute was
established in his memory or in the alternative it was
established by him for worship of Sikhs and has been so
used i.e. for worship by Sikhs. The case falls either UIS.
16(2} (3) or 16(2} (4) . This is a Gurdwara which is a public
D religious and charitable institution. Existence of Samadhi
does not alter the nature of the institution."
5. On the pleadings of the parties, the Tribunal framed the
fo~lowing preliminary issue:
E
"Whether the petitioner is .a hereditary office-holder of the
institution in dispute? OPP"
6. On 2.3.1965, Shri Charan Singh, Advocate appearing
on behalf of the respondent stated that he does not want to
F contest the status of the appellant to file petition under Section
8 of the Act as a hereditary office-holder because there are two
other petitions to be decided on merits. Accordingly, the
preliminary issue was decided in favour of the appellant.
G 7. On the same day i.e., 2.3.1965, an application was filed
on behalf of the respondent for amendment of the written
statement by substituting the original paragraph 3 with the
following:
"The institution in dispute is a Sikh Gurdwara built in
H memory of a visit of the 10th Guru who came to this place
MAHANTJAWALA SINGH v. SHI ROMANI GURDWARA 83
PRABHANDHAK COMMITii:E [GS. SINGH\ll, J.]
I "'.
from Dina and Lohgarh and stayed here for some time. A
This Gurdwara was built in memory of that visit and is being
used as a place of worship by Sikhs. on account of the
traditional visit of the 10th Guru and is therefore, being .
worshipped by the Sikhs or in the alternative under Section
16(2) (3)." B
T.he amended written statement was also filed along with
the application for amendment.
8. By an order dated 31.3.1965, the Tribunal granted leave·
to the respondent to amend the .written statement and framed C
the following issue:
"Whether the. institution in dispute is a, Sikh Gurdwara7"
9. The appellant examined himself and seven other
witnesses. He also produced documentary evidence in the form D
of Exhibits P-1 to P-31. On behalf of the respondent, six
witnesses were examined and eighteen documents marked
Exhibits R-1 to R-18 were produced.
10. The Tribunal first considered the question whether the E
institution could be declared as a Sikh Gurdwara because the
same was established to commemorate the visit of 10th Guru,
Shri Guru Gooind Singh Ji to village Jalal and .answered the
same in negative by recording the following observations:
F
"........... In this connection, he placed reliance on the
statements of RW-1, Mal Singh, RW-2 Santa Singh, RW-
3 Gurnam Singh, RW-4 Balbinder Singh, RW-5 Jagir
Singh, RW-6 Baga Singh, who have all deposed that
according to the tradition, the 10th Guru visited village Jalal
on his way from Village Dina to village Lambra of Lamb- G
wali. The Ld. Counsel also referred us the same books of
History for substantiating his said contention. But when
confronted with narration to the contrary in quite a large
number of historical works, relied upon and referred to. us
by the Ld. Counsel for the Petitioner, .S. Charan Singh did H
84 SUPREME COURT REPORTS [2011) 2 $.C.R.
A not press this plea any further. There is evidently not
enough evidence on the record either factual or historical
from which it may be concluded that this institution has any
connection with the visit of 1Oth Guru to this place. Under
the circumstances, we feel constrained to hold that the
B provisions of Section 16(2) (iv) are not attracted to the
facts of the present case. The plea taken by the
Respondent Committee regarding the establishment of this
institution in memory of the visit of Tenth Guru to this place
is, therefore, rejected."
c 11. The Tribunal then considered the question whether the
institution could be treated as a Sikh Gurdwara under Section
16(2) (iii) of the Act, analysed the oral and documentary
evidence produced by the parties and held that the institution
is a Sikh Gurdwara. For recording this conclusion, the Tribunal
D mainly relied on the entries contained in the revenue records
i.e. Exhibit R-1 (Khatauni of village Jalal), Exhibit R-2 (copy of
Jamabandi pertaining to years 1981-85 BK), Exhibits R-3 and .
R-4 (certified copies of Jamabandies for the year 2000-2001),
Exhibit R-5 (certified copy of an extract from the register of
E Muafi and Pensions pertaining to village Jalal), Exhibit R-7
(copy of the revised entries from the register of Muafi of village
Jalal), Exhibit R-6 (certified copy of the pedigree table of vi!Jage
Jalal), Exhibits R-8 and R-9 (certified copies of the statements
of Bhaktawar Singh Lambardar and Mahanl Bishan Singh
F recorded on 9.11.1985 BK in Muafi File No.9), Exhibit R-14
(attested copy of an application made by Dial Singh
Lambardar and some other proprietors of village Jalal dated
12, Bhadon, Sammat 19.41 from file No.192 decided on 11 Asuj,
1941 (1884 A.D;), Exhibit R-18 (copy of the Jamabandi for the ,
G year 1969-70 A.O.) and observed: ·
"T.hus from the documents placed and proved on the file
on behalf of the Respondent Committee, it comes
abundantly evidence that from its very inception, Guru
Granth Sahib has been ceremoniously opened and recited ~
H
L., ~
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 85
PRABHANDHAK COMMITIEE [G.S. SINGHVI, J.]
in the said institution which has throughout been.described A
as a Gurdwara in the oldest as well up to date revenue ·
record pertaining to its lands and Muafi ................. The
presence and Parkash of Shri Guru Granth Sahib in Dera
in question is clearly mentioned in this document which
also incorporates the request and recommendation of the 8
village proprietors to the effect that the land should be
entered in the name of the Dera Granth Sahib. The counsel
also argued that none of the documents marked Exhibit
P-1 .to P-31 in any way supported the claim of the
Petitioner regarding Nirmala Character of the institution. C
On the other hand most of the Petitioner's documents
themselves show that the Muafi of this institution was
granted for the purposes of Dharam Arth and that the
incumbents of this institution were all "Bhais" and not .
Nirinala Sadhs as now all~ged by the Petitioner. Among
Sikhs the title "Bhai" is generally meant and used for the 0
most learned and venerable one's who are supposed to
be well versed in Sikh Scriptures, literature and history. It
is also worth mentioning here that none of the documents
exhibited on behalf of the Petitioner suggest any other
mode or object of worship in the said institution, at any E
stage of its existei1ce. The plea of Samadhworship seems
to be clearly an afte~ thought and appears to have been
. introduced solely for the sake of casting doubt on the claim
of the persons who have claims this institution to be Sikh
Gurdwara." F
12. The Tribunal noted the argument made by the counsel
for the respondent that. there is a statutory presumption
regarding correctness of the entries in the record of rights and
observed: G
•..................As the Petitioner has not been able to rebute
the presumption the entries in the Jamabandi Exhibits R-
1. R-2, R-3, R-4 and R-18 showing Guru Granth Sahib
Wakia Deh Hazah and Gurdwara Sahib Wakia Deh Hazab
H
86 SUPREME COURT REPORTS [2011] 2 S.C.R. .
A as the executive owner of the landed property attached to
the institution, must be presumed to be correct. There
seems to be much force in this argument of the counsel. It
is now for the Petitioner to satisfy us how far he has
succeeded in rebutting the said presumption."
B 13. The Tribunal also referred to the statements of the
witnesses examined by the appellant and held that the same
were not sufficient to discard the evidence produced by the
respondent to show that the institution was in fact established
as a Sikh Gurdwara for use by Sikhs for the purpose of public
C worship. The Tribunal was also of the view that the affidavits
(Exhibits P7 to P10) of Ginder Singh, Gurjant Singh, Nand
Singh, Jiwan and Harnam Singh, who stated that their
signatures on the petition filed under Section 7(1) of the Act
were obtained by fraud cannot be relied upon because they
D were not examined as witnesses. The Tribunal then considered
the argument that the Dera was established by Baba Kharak
Singh, who was a Nirmala saint and rejected the same by
observing that no documentary evidence was produced to
prove this fact. The argument of the appellant that the use of
E the word 'Dera' in various documents is indicative of the fact
that it was not a Gurdwara was rejected by the Tribunal by
relying upon the judgments of this Court in Banta Singh v.
Gu.rdwara Sahib Dasvi Patshai and another (Civil Appeal
No.446 of 1962 decided on 9.11.1964) and three unreported
'F judgments of the Division Bench of the High Court wherein it
was held that 'Dera' and 'Gurdwara' are interchangeable terms.·
The Tribunal distinguished the judgments of the Lahore High
Court in Ram Parshad and others v. Shiromani Gurdwara
Parbandhak Committee, Amritsar and others AIR 1931 Lahore
G 161; Arjan Singh and another v. lnder Dass and another AIR
1934 Lahore 13; Lachhman Dass and others v. Atma Singh
and others AIR 1935 Lahore 666; Maghar Singh and others v.
Hardit Dass AIR 1935 Lahore 879; Santa Singh and others v.
Puran Dass and others AIR 1936 Lahore 216; Hardit Dass v.
H Gurdit Singh and another AIR 1936 Lahore 819; Dial Singh v.
MAHANT JAWALA SINGH v.SHIROMANI GURDWARA 87
PRABHANDHAK COMMITIEE [GS. SINGHVI, J.]
Bhagat Ram and others AIR 1936 Lahore 822; Harnam Dass A
v. Kartar Singh and another AIR 1936 Lahore 825; lshar Dass
v. Bhagwan Singh and another AIR 1936 Lahore 841; Mukand
Singh v. Puran Dass AIR 1936 Lahore 924; Arjan Singh and
another v. Harbhajan Dass and another AIR 1937 Lahore,2~0
and of the Privy Council in Hem Singh and others v. Basfoit . e
Dass and others AIR 1936 PC 93 and distinguished the same ·
by observing that the factual matrix of those cases was
substantially different. The Tribunal rejected the plea of the
appellant that the institution was established by Nirmala Sadh
and distinguished the judgment of this Court in Mahant Hamam c
Singh v. Gurdial Singh and another AIR 1967 SC 1415 by
making the following observations:
"But we do not see what benefit can be derived therefrom
by Petitioners, in view of the overwhelming documentary
evidence which repeatedly describe this institution to be D
a Sikh Gurdwara, where Guru Granth Sahib has been the
object of worship throughout its existence. There is no an
iota of evidence to show that the building mentioned as
para 4 of the Notification No.385 G.P. dated 25th January
1963 was ever established as a Nirmala instit!Jtion. The E
gift of the land was never made to Bhai Bir Singh
individually or for his personal use. It is also not mentioned
in any of the documents that the institution.was established
for being used as Nirmala monastery or college or for the
purposes of Smadh-worship or anything of that type. If F
anything, the statement of the previous manager Bhai ·
Bishan- Singh in the year 1928 A.O. copy marked Exhibit
R-9 closed the matter in regard to his religion as well as
in regard to the nature of the institution. He declared in
unequivocal terms that he was a Sikh Jat and further that G
he 'l>?.s merely a manager or mahant of Gurdwara Sahib.
In our opmion, the Petitioner has not been able to make
- out any case regarding the Nirmala character of the
institution._.::-On the other hand, on the basis of the
documentary evidence discussed above, we feel. inclined H
88 SUPREME COURT REPORTS [2011] 2 S.C.R.
A to hold that this institution was established by Baba Kharak
Singh. A Sikh gentleman of piety and prestige in the lllaqa
for use by Sikhs for the purposes of public worship of Sri
Guru Granth Sahib, the holy Sikh Scripture."
14. In the end, the Tribunal considered whether the
8
requirement of user of the institution by Sikhs for the purpose
of public worship was satisfied and held:
"Next coming to the second requirement as to the user
before and at the time of the presentation of the Petition,
c we have mainly to draw material from the oral evidence
adduced on behalf of the parties. It is conceded by all the
PWs that the village is a Sikh Proprietory village and the
major part of the population of the said Village belongs to
the Sikh faith. PW-7, Sampuran Singh and PW-R Jawala
D Singh Petitioner have further recorded that there is no other
Sikh Gurdwara in the revenue estate of village Jalal. The
consistent evidence of the Respondents witnesses is, that
the object of worship in the said Gurdwara is Shri Guru
Granth Sahib and nothing else. RW-1 Mal Singh has
E deposed that Guru Granth Sahib is the only object of
worship in the institution and Sikhs comes to pay
reverence in this Gurdwara on account of tradition
associated with it. In cross-examination he says that the
Chhota Dera of lsher Singh has nothing to do with the
F institution in dispute. RW-2, Santa Singh says that the
Sikhs of the village come to pay reverences to the
Gurdwara due to the tradition. In cross-examination, he
says that he has not noticed any Smadhi in the Gurdwara
but on the back side in the cremation ground there are
some Samadhis. RW-3 Gurnam Singh states that Shri
G
Guru Granth Sahib is the object of worship in this institution
and that the Petitioner who is a follower of the Sikh faith
is a Granthi and Mahant of this Gurudwara now. He has
further mentioned that the Petitioner has started wearing
saffron colour clothes for the last five or six months. RW-
H
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 89
PRABHANDHAK COMMllTEE [G.S. SINGHVI, J.)
4, Balbinder Singh says that the Sikhs come to worship A
this institution where Holy Granths is the object of worship.
He also states that the birth day of 10th Guru is celebrated
as a Gurpurab in the institution in dispute. In cross-
examination, he asserts that there are no Smadhis on the
premises of the institution, but there may be Smadhis of B
some persons in the cremation ground of the village, which
is at the back of the village institution. Towards the end of
the cross-examination, .he says that he visits the institution
in dispute fortnightly or monthly and he last visited it about
15 days prior to his coming to the witness box. RW-5 Jagir c
Sigh has stated that the institution in dispute is a Sikh
Gurdwara where Sikhs go to worship and pay reverence.
According to this RW, Mahant Sishan Singh was a Sikh
and the Mahants, who preceded him were also Sikhs like
him. RW-6, Saga Singh has deposed that the Sikhs who
0
predominate the village go to the institution for worship
where the object of worship is Guru Granth Sahib.
· According to RW Saga Singh, Mahant Sishan Singh was
a Sikh. In cross-examination, he was confronted with the
writing marked Exhibit RW-6/1 but he explained that the
E
statement which he made in the Court of Subordinate
Judge, Phool, related to another institution which was
described as Dera Jawala Singh.
In fairness to Mr. Sajjan Singh, we must also notice his last
submission regarding the Nirmala nature of the institution F
in the light of certain passages occurring at pages 172 to
181 of the Gurmukhi book 'Nirmal Panth Darshan' Volume
Ill, written and published by Mahant Dial Singh of Mahabir
Nagar, New Delhi. On the basis of the version given
therein the learned counsel for the petitioner strongly G
~+ressed that the institution be declared to be dera of the
Nim1aia Sadhus.
The learned counsel for the Respondent Committee took .
a strong objection a reference being made to this book H
90 SUPREME COURT REPORTS [2011] 2 S.C.R.
A on the ground that the same was purposely published by
the Nirmalas sometime in 1963 after the publication of the
notification under Section 7(3) in this case. The date of
the publication of the Book is not mentioned anywhere on
the title page or anywhere else in the book. S. Charan
B Singh however, pointed out to us that the printed matter
appearing to page 553 clearly indicated that this volume
was published after July 1962. The two dates 1st July 1962
and 1oth July 1962 mentioned at the said page regarding
the execution of some gift deed by the donor whose life
is depicted thereafter, as well as the mention of some
c incidents of Sammat 2018 both at page 553 and page 4
a1so afforded a clue that this book was published only
1
recently. Another objection raised was that no attempt
having been made by the petitioner to prove that the author
had any special knowledge about the subject about much
D he had dealt with in the book or that he had done any
research in the Sikh history as a research scholar or as
a historian, not much reliance can be placed on the
narrations given in the said book. It was further urged that
the petitioner has neither shown that the book in question
E was based on the material obtained from old books on
religion or history, .nor has he brought its author in the
witness box to depose about the source of correctness
of the material collected in the said compilation. Taken
together, the above factors do create an impression that
F the present Volume of "Nirma!a Panth Darshan" may have
been brought out with a purpose by and at the instance
of the persons who were likely to be adversely affected
by the various notifications issued by the State
Government under the relevant provisions of the Sikh
G Gurdwaras Act as amended by Act 1 of 1959. In dealing
with it, we have thus to exercise much caution, more so,
when the learned counsel for the petitioner has failed to
support the statements made In this volume by and from
any other authoritative or standard work on the subject.
H
MAHANT JAWAl.ASINGH v. SHIROMANI GURDWARA 91
PRABHANDHAK COMMITIEE [G.S. SINGHVI, J.]
Not only that, the disclosure made in the said book about A
the spiritual heritage of Baba Kharak Singh, the founder
of the institution in dispute, damages the case of the
petitioner beyond repairs. According to the pleadings and'
evidence of the petitioner, the said Baba Kharak Singh
was a Nirmala Sadh. In the book under discussion Baba B
Kharak Singh is shown as disciple of Baba Gurbux Singh,
the first mohatmim of historic Sikh Shrine known as ..
Gurdwara Padshi Naumi at Dhamdhan, now notifieda
Sikh Gurdwara entered at Serial No. 314 of Schedule I··
of the S.G. Act. It is next mentioned in it that the above c·
said Baba Gurbax Singh was administered Amrit by Bhai
Daya Singh Jee who had received Nectar (Amrit) directly
from the 10th Guru. It may be noted here that the said
Baba Daya Singh was the first among the Five Pyaras
or Beloved One's who had offered their heads to Shri
0
Guru Gobind Singh Jee upon his command at Keshgarh
on the Baisakhy festival of 1699 A.O. "Nirmal Panth
Darshan" however reveals that the aforementioned Baba
Kharak Singh received Amrit as well as his entire spiritual
and religious training at the hands of said Baba Gurbax
Singh, who after bidding farewell -to Anandpur Sahib, had E
taken his abode at Gurdwara Dhamdhan Sahib. There is
no denying the fact that Baba Daya Singh Jee and Baba
Gurbax Singh Jee above mentioned were both famous
Sikh heroes and historical persons, about whom
references have been repeatedly made in all the important F
works of Sikh history. The fact that Baba Kharak Singh
was initiated into Sikh-fold by administration of Amrit that
is Sikh Baptism by Baba Gurbux Singh, in itself is enough
to enable us to conclude that the former also came to be
known as a Sikh saint of great repute during his life time. G
The institution established by such a devoted and
dedicated Sikh as Baba Kharak Singh, for the purpose
of public worship of Shri Guru Granth Sahib, cannot by any
stretch of imagination or argument be held to a non-Sikh
or Nirmala institution. Since, we find no substance H
92 SUPREME COURT REPORTS [2011] 2 S.C.R.
A whatsoever, even in the above submission of the learned
counsel for the petitioner, which he urged as an argument
of last resort, we accordingly repel the same."
15. The appellant challenged the order of the Tribunal by
filing an appeal, which was dismissed by the impugned
8
judgment. The Division Bench of the High Court discarded the
documentary evidence produced by the appellant by making
the following observations:
"At the outset, we may point out that the documentary
c evidence led by the petitioner in the form of Exhibits P-1
to P-31 is not of much use to him for proving his case to
rebut the evidence led by the Respondent-Committee. The
Tribunal in para 38 of its judgment-0bserved:-
D "The learned counsel for the petitioner has not been
able to convince us as to how the documents
Exhibits P-1 to P-31 in any manner substantiate the
allegations of the petitioners."
We also repeatedly asked the learned counsel for the
E appellant ·to explain how he derived any help from these
documents to counter the case of the respondent. He was
unable to derive any support from these documents. We,
therefore, will not refer to those as they do not contain any
substantial matter to dispute that the institution in dispute
F is not a Sikh Gurdwara."
16. The Division Bench of the High Court then referred to
Exhibits R1 and R7 in which Guru Granth Sahib is shown as
the owner of land in Patti Suleman and Patti Shamer and held
G that as per these entries, Bhai Bishan Singh Chela of Bhai
Guiab Singh, Nirmala sadh, resident of village Jalal was only a
non-occupancy tenant. The Bench did take note of the
appellant's plea that Baba Kharak Singh had founded the
" institution but did not accept the same and observed:
H
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 93
PRABHANDHAK COMMITIEE [G.S. SINGHVI, J.]
"In the case of the Appellant that Baba Kharak Singh had A
founded the institution, but there is no direct evidence of
. any type, oral or documentary of the time of the
establishment of the institution pointing to the purpose
of its establishment. We have to fall back upon the
available records of the earliest times. The revenue B
records referred to above are the only authentic and
reliable evidence available to assess the situation. These
documents show that the land of both the Pattis Suleman
and Shamir in Village Jalal stood in the name of Gurdwara
Sahib or Guru Granth Sahib right from the earlier times, c
the records came into existence. In Exhibits R-2 and R-7,
the entries in red ink show that the Muafi was granted for
Dhoop Deep of Guru Granth Sahib, serving the Sadhus
and also serving feed to the wayfarers till the continuance
of the Dera. These records, which are unimpeachable and 0
no effect was made to doubt their veracity on behalf of the
Appellant, go to establish the presence of Guru Granth
Sahib in the institution since the earliest times; Muafi .for
/
Dhoop Deep of Guru Granth Sahib also indicates that it
was being worshipped there and such worship was done E
publicly. Unless it was worshipped openly, the Rulers could
not have sanctioned the Muafi and continued it in the terms
which are recorded in red ink in the revenue documents."
(emphasis supplied)
F
The Division Bench then referred to the statement of Dogar
Singh Lamberdar of Patti Suleman, which was recorded on
23rd Asuj Samvat 1956, statement of another Lamberdar of
· village Jalal, namely, Bakhtawar Singh, which was recorded on
8th November, 1985 Bk. and statement of Bishan Singh, an
office-holder of the institution recorded on 8th November, 1985
Bk. and proceeded to observe:
"In this statement, he made an unequivocal declaration that
it is a Gurdwara and that the income is being spent on
Dhoop Deep and also for serving travellers. He wanted the
94 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Muafi to be continued as before, that is, in the name of the
Gurdwara or Guru Granth Sahib, as is indicated from the
entries in red ink incorporated in the revenue record
referred to above. Serving the travellers or running a
Langer etc. is a charitable purpose of a Sikh Gurdwara.
B
When the other places of evidence referred to above are
considered with the admission of Bishan Singh, in Exhibit
R-9, then it makes the matter very clear that the institution
was established as a Sikh Gurdwara for the use of Sikh
for public worship. It has to be held so; especially when
c no direct evidence has been led that Baba Kharak Singh
had founded it or that he was a Nirmala.
It becomes clear from the above discussed evidence that
it was a Gurdwara and not a Dera of the Nirmalas.
D
All the documents leave no room for doubt that Guru Granth
Sahib was the only object of worship in this institution. In
the Petition itself, the presence of Guru Granth Sahib is
mentioned though the purpose was sought to be restricted
E only for the benefit of the Nirmalas. In the light of the
discussion in the previous paragraphs, we are inclined to
accept this assertion about the restricted use only by the
Nirmalas. If it was for a limited purpose, then the
Lamberdars and Biswadars, who made statements during
the enquiries about the Muafi could not make those
F
statements, which have been referred to in the previous
paragraphs in the revenue records, it could not be referred
to as a Gurdwara. Even Bhai Bishan Singh admitted it to
be a Gurdwara in his statement Exhibit R-9. The Muafi
could not be granted and continued in the terms given. The
G Bws were emphatical in their assertion that Guru Granth
Sahib was the only object of worship. They get very strong
support from the circumstances discussed above."
17. In support of its conclusion that the institution in
H question is a Sikh Gurdwara, the Division Bench of the High
MAHANT JAWALASINGH v. SHIROMANI GURDWARA 95
PRABHANDHAK COMMITIEE [G.G. SINGHVI, J.]
Court, in addition to the documentary evidence produced by the A.
respondent, strongly relied upon the foUowing
. .
factors:
1. The majority of the population of village Jafal was
Sikh;
2. There is no other Gurdwara in the village where the B
Sikhs could go for worship; and
3. Maharaja of Nabha who gave Muafi and other
grants was himself a Sikh ruler.
I '
18. Shri Sarvesh Bisaria, learned counsel for the appellant
c
referred to Section 16(2)(iii) of the Act to show that an institution
can be declared to be a Sikh Gurdwara only if it is proved that
the same was established for use by Sikhs for the purpose of
public worship and was so used before and at the time of
presentation of petition under Section 7(1). Learned counsel D
emphasized that the burden to prove both the ingredients of
Section 16(2)(iii) was on the respondent, which it miserab1y
failed to discharge and argued that the Tribunal committed a
jurisdictional error by declaring the institution in question to be
a Sikh Gurdwara only on the ground that in the revenue records E
produced by the respondent, Guru Granth Sahib was shown as
the owner of various parcels of land and Baba Bishan Singh
Chela of Baba Guiab Singh was shown as a non-occupancy
tenant. Learned counsel pointed out that in the amended written
statement, the respondent had specifically pleaded that the ·F
Gurdwara in question was established to commemorate the
visit of 10th Guru and is being used as a place of worship on
account of the said visit, but failed to substantiate the same ..
Learned counsel then submitted that even though in paragraph
3 of the amended written statement. a reference was also made G
to Section 16(2)(iii), there was not a whisper that the institution
was established for use by Sikhs for the purpose of public
worship and was used as such before and at the time of
presentation of the petition under Section 7(1) and argued that
in the absence of a foundation having been laid, the Tribunal H
96 SUPREME COURT REPORTS [2011) 2 S.C.R.
A was not justified in granting a declaration that the institution is
a Sikh Gurdwara. Shri Bisaria criticized the impugned judgment
and argued that the High Court committed serious error by
deciding the appeal without even adverting to the documentary
evidence produced by the appellant on the specious ground
B that the counsel appearing on his behalf could not explain as
to how the same were helpful to the cause of his client. Shri
Bisaria extensively referred to documents produced before this
Court which, according to the learned counsel formed part of
the record of the Tribunal and the High Court to show that
c Maharaja Bharpur Singh of Nabha State (village Jalal was part
of the princely State of Nabha) had granted land measuring 50
Ghumaon (approximately 200 bighas) to Bhai Bir Singh as
early as in Samvat 1908 and that in Samvat 1914 the land was
given to Bhai Bir Singh on periodical lease when Maharaja
Bharpur Singh visited Phul and argued that the documentary
0
evidence showing grant of Muafi in respect of~ portion of the
land granted to Bhai Bir Singh and recording of the name of
Dera Granth Sahib as per the desire of the owners was clearly
indicative of the fact that the institution in question was a Dera
and not a Gurdwara much less a Sikh Gurdwara established
E for use by Sikhs for the purpose of public worship. In the end,
Shri Bisaria relied upon Section 4 of the Places of Worship
(Special Provisions) Act, 1991 (for short, 'the 1991 Act') and
argued that religious character of the Dera cannot be changed
on the basis of the order passed by the Tribunal.
F
19. Shri Jaspal Singh, learned senior counsel appearing
for the respondent supported the impugned judgment and the
order of the Tribunal and argued that even though the
respondent had not specifically pleaded that the institution in
G question was established for use by Sikhs for the purpose of
public worship and was used as such by Sikhs before and at
the time of presentation of the petition by 53 persons under
Section 7(1) of the Act, the Tribunal did not commit any error
by declaring it to be a Sikh Gurdwara because the parties had
H gone to the trial knowing fully well that the Tribunal was required
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 97
PRABHANDHAK COMMITIEE [GS. SINGHVI, J.]
to decide whether the institution is a Sikh Gurdwara and led A
evidence in support of their respective.cases. Learned senior
counsel referred to the entries made in the Khatauni and
Jamabandis of village Jalal to show that the Guru Granth Sahib
has throughout been recorded as the owner of land and Baba
.Bishan Singh Chela of Baba Guiab Singh was merely a non- B
occupancy tenant. Learned senior counsel submitted that Muafi
granted by Maharaj a of Nabha did not alter the character of the
institution, which was established for use by Sikhs for the
purpose of public worship. Shri Jaspal Singh emphasized that
the appellant did not lead any substantive evidence to prove c
that the institution was established by· Nirmala Sadhs and
worship of Guru Granth Sahib was only incidental to their
activities. Shri Jaspal Singh argued that the provisions of
Section 4 of the 1991 Act cannot be relied upon for the.
purpose of nullifying the declaration granted by the Tribunal
0
because no evidence was produced by the appellant to show
that the Dera was a religious place established by Nirmala
Sadhs.
20. We have considered the respective submissions. For
deciding the questions raised in this appeal, it will be useful to E
notice the relevant provisions of the Act. The same are as
under:
"7. Petition to have a gurdwara declared a Sikh
Gurdwara.- (1) Any fifty or more Sikh worshippers of a F
gurdwara, each of whom is more than twenty-one years of
age and was on the commencement of this Act or, in the
case of the extended territories from the commencement
of the Amending Act resident in the police station area in
which the gurdwara is situated, may forward to the G
appropriate Secretary to the Government so as to reach
the Secretary within one year from the commencement of
this Act or within such further period as the State
Government may by notification fix for this purpose, a
petition praying to have the gurdwara declared to be a Sikh
Gurdwara: H
98 SUPREME COURT REPORTS [2011) 2 S.C.R.
A Provided that the State Government may in respect of any
such gurdwara declare by notification that a petition shall
be deemed to be duly forwarded whether the petitioners
were or were not on the commencement of this Act or, in
the case of extended territories, on the commencement of
·B the Amending Act, as the case may be, residents in the
police-station area in which such gurdwara is situated, and
shall thereafter deal with any petition that may be otherwise
duly forwarded in respect of any such gurdwara as if the
petition had been duly forwarded by petitioners who were
c such residents:
Provided further that no such petition shall be entertained
in respect of any institution specified in schedule I or
schedule II unless the institution is deemed to be excluded
from specification in schedule I under the provisions of
D section 4.
(2) List of property claimed for the gurdwara and of
persons in possession thereof to accompany a petition
under sub-section (1).- A petition forwarded under the
E provisions of sub-section (1) shall state name of the
gurdwara to which it relates and of the district, tehsil and
revenue estate in which it is situated, and shall be
accompanied by a list, verified and signed by the
petitioners, of all rights, titles or interests in immovable
F properties situated in Punjab inclusive of the gurdwara and
in all monetary endowments yielding recurring income or
profit received in Punjab, which the petitioners claim to
belong within their knowledge to the gurdwara the name
of the person in possession of any such right, title or
interest, and if an~· 3uch person is insane or a minor the
G
name of his legal or natural guardian, or if there is no such
guardian, the name of the person with whom the insane
person or minor resides or is residing, or if there is no such
person, the name of the person actually or constructively
in possession of such right, title or interest on behalf of the
H
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 99
PRABHANDHAK COMMITIEE [GS. Sl~GHVI, J.:]
insane person or minor, and if any such right, title or A
interest is alleged to be in possession of the gurdwara
through any person, the name of such person shall be .
stated in the list; and the petition and the list shall be in
such form and shall contain such further particulars as may
be prescribed. B
(3) Publication of petition and list received under sub-
sections (1) and (2).- On receiving a petition duly signed
and forwarded under the provisions of sub-section (1) the
State Government shall, as soon as may be, publish it
alongwith the accompanying list, by notification, and shall C
cause it and the list to be published, in such manner as
may be prescribed, at the headquarters of the district and
of the tehsil and in the revenue estate in which the
gurdwara is situated and at the· headquarters of every
district and every tehsil and in every, revenue. estate in D
which any of the immova.ble properties mentioned in the
list is situated and shall also give such other notice thereof
as may be prescribed:
Provided that such petition may be withdrawn by notice to E
be forwarded by the Board so as to reach the appropriate ·
Secretary to Government, at any time before publication,
and on such withdrawal it shall be deemed as if no petition
had been forwarded under the provisions of sub-section
(1). F
(4) & (5) )()()( )()()( )()()(
.8. Petition to have it declared that a place asserted to be
a Sikh Gurdwara is not such a gurdwara.- When a .
notification has been published under the provisions of G·
sub-section (3) of section 7 in respect of any gurdwara,
any hereditary office-holder or any twenty or more
,worshippers of the Gurdwara, each of whom is more than
twenty-one years of age and was on the commencement
of this Act or, in the case of the extended territories, on H.
100 SUPREME COURT REPORTS [2011) 2 S.C.R.
A the commencement of the Amending Act, as the case may
be, a resident of a police-station area in which the
gurdwara is situated, may forward to the State
Government, through the appropriate Secretary to
Government so as to reach the secretary within ninety days
B from the date of the publication of the notification, a petition
signed and verified by the petitioner, or petitioners, as the
case may be, claiming that the Gurdwara is not a Sikh
Gurdwara, and may in such petition make a further claim
that any hereditary office-holder or any person who would
c have succeeded to such office-holder under the system of
management prevailing before the first day of January
1920 or in the case of the extended territories, before the
1st day of November, 1956, as the case may be, may be
restored to office on the grounds that such gurdwara is not
a Sikh Gurdwara and that such office-holder ceased to be
D
an office-holder after that day:
Provided that the State Government may in respect of any
such gurdwara declare by notification that a petition of
twenty or more worshippers of such gurdwara shall be
E deemed to be duly forwarded whether the petitioners were
or were not "" tt-ie commencement of this Act or, in the
case of the extended territories, on the commencement of
the Amending Act, as the case may be, resident in the
police-station area in which such gurdwara is situated, and
F shall thereafter deal with any petition that may be otherwise
duly forwarded in respect of any such gurdwara as if the
petition had been duly forwarded by petitioners who were
such residents.
16. Issue as to whether a gurdwara is a Sikh Gurdwara to
G
be decided first and how issue 'is to be decided.- (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
H
MAHANT JAWALASINGH v. SHIROMANI GURDWARA 101
PRABHANDHAK COMMITIEE[GS. SINGHVI, J.]
other matter in dispute relating to the said gurdwara, A·
decide whether it should or should not be declared a Sikh
Gurdwara in accordance with the provisions of sub-
section (2).
(2) If the tribunal finds that the gurdwara-
B
{i) xxx )()()( )()()(
{ii) xxx )()()( )()(){
{iii). was established for use by Sikhs for the purpose of C
public worship and was used for such worship by Sikhs,
before and at the time of the presentation of the petition
under sub-section (1) of section 7; or
{iv) was established in memory of a Sikh martyr, saint or
historical person and was used for public worship by D
Sikhs, before and at the time of the presentation of the
petition under sub-section (1) of section 7.
)()()(
{v) xxx xxx .
(3) Where the tribunal finds that a gurdwara should not be E
declared to be a Sikh Gurdwara, it shall record its finding
in an order, and, subject to the finding of the High Court
on appeal, it shall cease to have jurisdiction in all matters
concerning such gurdwara, provided that, if a claim has
been made in accordance with the provisions of section F
8 praying for the restoration to office of a hereditary office-
holder or person who would have succeeded such office-
holder under·the system of management prevailing before
the first day of January, 1920 or, in the case of the
~xtended territories, .before the first day of November, G
1956 the tribunal shall, notwithstanding· such finding
continue to have jurisdiction in all matters relating to such
claim; and , ifthe tribunal finds it proved that such office-
holder ceased to be an office-holder on or after the first
day of January, 1920 or, in the case of the extended H
102 SUPREME COURT REPORTS [2011) 2 S.C.R.
A territories, after the first day of November, 1956, it may by
order direct that such office-holder or person who would
have so succeeded be restored to office.
21. A reading of the above reproduced provisions shows
that 50 or more Sikh worshippers of a gurdwara each of whom
8
is more than 21 years of age and is resident of the area of
police station within which the gurdwara is situated can file a
petition under Section 7(1) with the prayer that the gurdwara
may be declared to be Sikh Gurdwara. By virtue of proviso to
that section, such a petition cannot be entertained in respect
C of any institution specified in Schedule-I or Schedule-II unless
the same is deemed to be excluded from specification in
Schedule I under Section 4 of the Act. Section 7(2) specifies
the particulars which are required to be incorporated in a
petition filed under sub-section (1 ). These inclt je the name of
D gurdwara to which it relates and the district, tehsil and revenue
estate in which the gurdwara is situated. The petition shall also
contain details of all rights, titles or interests in immovable
properties situated in Punjab inclusive of the gurdwara. The
names of the persons who are actually or constructively in
E possession of title and interest on behalf of an insane or a minor
are also required to be disclosed. On receiving a petition under
Section 7(1 ), the State Government is required to ensure that
the same is published in the prescribed manner at the
headquarters of the district and of the tehsil and in the revenue
F estate in which the gurdwara is situated. Notice is also required
to be published at the headquarters of every district/tehsil/
revenue estate in which any of the immovable properties
mentioned in the list is situated. The movers of the petition
under Section 7(1) can withdraw by giving notice, which must
G reach the appropriate Secretary to the Government before
publication of notification. Section 8 provides for filing of petition
to contest the prayer made in a petition made under Section
7(1). A petition under Section 8 can be filed by any hereditary
office holder or any 20 or more worshippers of the gurdwara
H each of whom is more than 21 years of age and is a resident
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA . 103
PRABHANDHAK COMMITIEE [GS. SINGHVI, J.]
of a police station area in which the gurdwara is situated. In A
terms of Section 14(1), the State Government is required to
forward to a Tribunal all petitions received by it under Sections
5, 6, 8, 10 and 11 and the Tribunal is required to dispose of
such petitions in accordance with the provisions of the Act.
Section 16(1) contains a non obstante clause. It lays down that B
notwithstanding anything contained in any other law in force, the
Tribunal shall decide the dispute whether a gurdwara should or
should not be declared as a Sikh Gurdwara before inquiring
into any other matter in dispute relating to the said gurdwara.
Section 16(2) enumerates the types of cases in which a c
gurdwara can be declared to be a Sikh Gurdwara. In terms of
Section 16(2)(iii), the Tribunal can declare a gurdwara to be a
Sikh Gurdwara if it finds that the same 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 presentation
0
of the petition under Section 7(1). Section 16(2)(iv) empowers
the Tribunal to declare a gurdwara to be a Sikh Gurdwara if it
finds that the gurdwara was established in the memory of a Sikh
martyr, saint or historical person and was used for such worship
by Sikhs before and at the time of presentation of the petition
under Section 7(1). Section 16(3) deals with cases in which the E
Tribunal finds the Gurdwara should not be declared as a Sikh
Gurdwara. In the event of recording such finding, the Tribunal
ceases to have jurisdiction in all matters concerning such
Gurdwara except to the extent of restoration of office of a
hereditary office holder or person who would have succeeded F
such office holder under the system of management prevailing
before 1.1.1920 or in the case of an extended territories before
1.11.1956.
22 Section 16 of the Act has received fair amount of G
judicial cunsideration 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) WP"' used for such worship H
104 SUPREME COURT REPORTS [2011] 2 S.C.R.
A by Sikhs before and at the fime 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
B 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
C 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 Che/la (supra), Shiromani Gurdwara
Parbandhak Committee, Amritsar v. Bagga Singh (2003) 1
0
SCC 619, Shiromani Gurdwara Parbandhak Committee v.
Mahant Harnam Singh (2003) 11 SCC 377 and Shiromani
Gurdwara Parbandhak Committee v. Mahant Prem Dass
(2009) 1s sec 381.
E 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
F 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.
G Dass Che/la (supra) and Shiromani Gurdwara Parbandhak
Committee v. Mahant Prem Dass (supra).
24. Before proceeding further, we may notice the judgment
of the Lahore High Court in Kirpa Singh v. Ajaypa/ Singh AIR
1930 Lahore 1 on which reliance was placed by the learned
H 1' i
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 105.
PRABHANDHAK COMMITTEE [G.S. SINGHVI, J.]
\.
counsel for the appellant to support of his argument that the A
institution was established by Nirmala Sadhus and, therefore,
the same cannot be declared as a Sikh Gurdwara merely
because Guru Granth Sahib is worshipped by the appellant and
other Nirmala Sadhus. The facts of that case show that the
plaintiffs-respondents had filed a suit under Section 92 of the B
Code of Civil Procedure for removal of the appellant from the
management of the institution named "Guru Sar Satlani"
situated at a distance of about 13 miles from Amritsar.
According to the plaintiffs-respondents, the institution was a
Sikh Gurdwara, that is, a place of public worship for the Sikhs c
and constitutes a trust for public purposes of charitable and
reEgious nature. They alleged that the defendant-appellant was
a man of loose character and he had committed breach of trust
by mismanaging the Gurdwara, mal-administering its
properties, misapplying the income, misappropriating its funds
0
and by otherwise misbehaving and mis-conducting himself in
a manner which injured and scandalized the Sikh community
and worshippers of the Gurdwara. The plaintiffs-respondents
also prayed for framing of a scheme for future management of
the Gurdwara. The defendant-appellant denied all the
allegations and also pleaded that the institution was meant for E
Nirmala Sadhus only and that the plaintiffs-respondents who
were not Nirmalas had no interest therein. One of the issues
framed by the frial Court was whether Guru Sar Satlani is a
general Sikh Gaddi as distinguished form a Nirmala Sikh
Gaddi and whether the plaintiffs-respondents have any interest F
in it and they are entitled to maintain the suit. The trial Court
decreed the suit and directed removal of the defendant-
appellant from the management of the institution. During the
penden"y of the appeal, the Sikh Gurdwaras Act, 1925 was
enacted ar •.:1 brought into force. Bhide, J. extensively referred G
to the evidene;e nroduced by the parties, various books and
reports on Nirmalas and observed:
"The origin of the Nirmalas seems to be somewhat obscure
and there are different traditions in C"''1nection with it. But H
106 SUPREME COURT REPORTS [2011] 2 S.C.R.
A it seems to be generally accepted that they came into
existence in Guru govind Singh's time. Defendant Kirpa
Singh has himself admitted in his statement: vide p.85, part
1 of the Printed Paper Book, that "Nirmalas" are chelas
of Guru Gobind Singh, and hence it is unnecessary to
B dilate on this point. But although the Nirmalas appear to
have been originally followers of Guru Gobind Singh the
important point for consideration is whether they are now
distinct from the general body of the Sikhs and in particular
from the plaintiffs who are "Akalis." On this point, the
c authorities seem to be agreed that the Nirmalas have
drifted to a great extent towards the practices of the Hindu
religion. The following extract from Sir Edward Maclagan's
Census report for this Province for the year 1891 is very
instructive in this connection.
D The Nirmalas represent a different aspect of the history of
Gobind's followers; for this order has by degrees rid itself
of the main distinguishing marks of the Khalsa faith and
is gradually.returning to a pure form of orthodox Hinduism.
The Nirmalas originated, like the Akalis, in the time of
E Gobind Singh, but there are two stories regarding the
manner of their origin. According to the one, a water carrier
was seized by Gobind's soldiers for supplying water to the
enemy during a battle, but the Guru recognized the virtue
of his act and embracing him exclaimed, Thou art without
F stain (Nirmala).
This story, however, has too much resemblance to that
regarding Kanhaiya Lal quoted in para. 103 above; and
the following appears the more probable account. It is said
that Guru Gobind Singh sent three followers named Karm
G
Singh, Harchand and Mihr Rai to Benares to acquire a
knowledge of Sanskrit, when the Pandits of that city
refused to come themselves to Gobind Singh; and that, on
their return, the Guru blessed them as being the only
Earned men among the Sikhs and called them "Nirmala."
H
\
MAHANT JAWALASINGH v. SHIROMANI GURDWARA 107
PRABHANDHAK COMMITTEE [GS. SINGHVI, J.J
They were allowed to take the pahul and founded the order A
of Nirmala Sadhus. This order was at first devoted to the
regulations of Gobind Singh, wore white garments, and had
considerable influence with his followers. But their taste for
Sanskrit literature (w~ich is to this day cultivated by them
with considerable care) ,17d them to imbibe ~he principles 8
of the Vedanta and to re-adopt many of the customs of the
Shastras. They gave up the use of meat and,spirits. They
also began to adopt the ordinary ochre-coloured dress of
the Indian faqir, which is strictly prohibited to the true
followers of Gobind, and some of them are now only C
distinguishable from the Udasi followers of Nanak by the
wearing; of the kes or uncut hair. They are almost always
celibate and almost always ·in monasteries. They have
generally some pretensions to learning, and, unlike most
of the religious orders in the Punjab, have a high reputation
for morality. They are said to live on offerings voluntarily 0
presented, and to abstain from begging but there are
some who say that the ochre-coloured dress has been
adopted mainly for its convenience in begging. Their
principal Akhara is a~ Hardwar, and it is said that their
societies throughout the province are periodically visited E
by a controlling council. They have three considerable
monasteries; in the Hoshiarpur District at Munak,
Adamwal and Alampur Kotla; and by our returns they
appear to be strong in Gurdaspur, where they are mainly
returned as Hindus, and in Ambala, Ferozepor and F
Amritsar, where they are mainly-returned as Sikhs. It is
supposed that, they are to be found in some numbers in
Patiala, but our tables would intimate that they are as strong
in Faridkot They are looked on as unorthodox by most true
Sikhs, and it will be observed that more of them are G
returned in the Census as Hindu than as Sikhs. The Akalis
are specially bitter against them and there have been great
contentions between the two sects with regard to the right
of worship at the great Sikh shrine at Apchalanagar on the
Godaveri." H
108. SUPREME COURT REPORTS [2011] 2 S.C.R.
A 25. The aforementioned judgment was approved by this
Court in Mahant Harnam Singh v. Gurdiyal Singh AIR 1967
SC 1415. In that case, the appellant had challenged the decree
passed by the High Court which had reversed dismissal of the
suit filed by the respondent for removal of the appellant from
8 the office of Mahant of an institution described as Gurdwara
Jhandawala. In the plaint, the respondent pleaded that is one
Guru Granth Sahib at Village Jhandawala in the name of
Gurdwara Jhandawala which is managed by Mahant Harnam
Singh appellant as a Mahatmim, and that he is in possession
C of the "Dera" and agricultural land belonging to Guru Granth
Sahib, Gurdwara Jhandawala. The Gurdwara was said to be
a public religious place which was established by the residents
of the village. It was pleaded that this religious institution was
a public trust created by the residents of the village for the
service of the public to provide food to the visitors from the
D Lungar (free kitchen} to allow the people to fulfil religious beliefs
and for worship, etc. The plaintiff-respondents stated that, in the
capacity of representatives of owners of lands situated at village
Jhandawala and of the residents of village Jhandawala, they
submitted an application for permission to institute this suit on
E the ground that the appellant was indulging in various
undesirable activities and was misusing the funds of the trust
which justified his removal from the office of the Mahant. The
respondents claimed that, in their capacity of representatives
of the owners of the land situated at village Jhandawala and of
F residents of the said village, they were entitled to institute this
suit under Section 92 CPC. The trial Court held that Nirmalas
are not Sikhs and the institution was not a Sikh institution and
further that the plaintiffG do not have the right to file suit. The
High Court did not agree with the trial Court and held that
G Nirmalas are a section of Sikhs and as such the Sikhs had
interest in the institution because it was a Sikh Gurdwara. This
Court noted that although the Punjab High Court had referred
to the judgment of Lahore High Court, but overlooked the ratio
thereof and held:
.H
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 109
PRABHANDHAK COMMITIEE [GS. SINGHVI, J,]
"Vve are unable to agree that these passages relied upon A
by the High Court are enough to lead to an inference that
Nirmala Sadhus are S.ikhs and that they still retain the
essential characteristics of the Sikh faith. It is true that, in
their origin, Nirmala Sadhus started as a section of Sikhs
who were followers of Guru Gobind Singh, but, B
subsequently, in the period of about 300 years that has
since elapsed, they have veered away from the Sikh,
roligion. That is why, after giving their historical origin,
Macauliffe expressed the opinion that Nirmalas were only
nominally Sikhs. In Maclagan's Census Report also it was c
mentioned that Nirmala Sadhus are treated as Sikhs in
some places,.while in other place they are returned as
Hindus. He has mentioned the Districts in Punjab where
they are returned mainly as Hindus, and others where they
were considered as Sikhs. Faridkot, the District within 0
which the institution with which we are concerned is
situated, is mentioned as a place where they are regarded
as Hindus and in the Census they have been returned as
such. In these circumstances, we do not think that this
material by itself, which the High Court called out of the
judgment of Bhide, J., could properly lead to the inference E
that Nirmalas are Sikhs .....
Further, in this case, there was material showing that this F
institution at Jhandawa!a was registered as one of the
branches of the principal institution of Nirmala Sadhus
known as the Panchayati Akhara situated at Kankhal near
Hardwar. There was further evidence showing that in this
institution the worship is primarily of a Samadh which is G
against all tenets of the Sikh religion. Nirmala Sadhus, it
appears, as a class worship at Samadhs which goes to
show that they can no longer be regarded as people
following the Sikh religion. In their beliefs and practices,
the Nirmala Sadhus are now quite akin to Udasis, and H
110 SUPREME COURT REPORTS (2011] 2 S.C.R.
A there is a series of cases which has laid down that
members of the Udas! sect are not Sikhs ............ "
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
B
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
C Gurdwara. The State Government notified the application under
Section 7(3) of the Act. Thereupon, the appellant filed an
application under Sections 8 and 1Oclaiming that the institution
was not a Sikh Gurdwara but an Udasi institution known as
Dera Bhai Bhagtu. The respondent contested the application.
D 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.
Gurdiya/ Singh (supra), Mahant Dharam Dass v. State of
E 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:
F "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
G
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
H
MAHANT JAWALA SINGH v. SHIROMANI GURDWARA 111
PRABHANDHAK COMMITTEE [G.S. SINGHVI, J.]
because they are inconsistent with the tenets of the Sikh A
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. B
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 C
Sahib was recited in this institution, no support can be
drawn for the claim that the institution was a Sikh
gurdwara."
(emphasis supplied)
D
27. In Shiroman;. 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: E
"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 F
Section /6(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 G
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 H ·
112 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 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)(iit). In this case there is no evidence to
show that the institution was established for use by Sikhs
8 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
c original grantor was a Muslim ruler Rai Katha but there
is nothing to show that when Gu/abdas 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 01' Sikh
D 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)
E
of the Act."
2 (AIR 1937 Lah.577)
(emphasis supplied)
F
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
G 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.
H 29. In S.G.P.C. v. M.P. Dass Che/a (supra), this Court
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 113
PRABHANDHAK COMMITTEE [GS. SINGHVI, J.]
considered the question whether the entries in jamabandi A
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 B
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 c
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- 0
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 E
was referred to the third Judge, he agreed with one of the
Judges that the respondent was a hereditary office-holder and
that the institution in question was not a Sikh Gurdwara. This
. Court approved the view expressed by the majority and
observed:
F
"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 G
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 H
114 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 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
B 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
c 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,
D 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.
E 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."
F
(emphasis supplied)
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
G of Udasi sect cannot lead to an inference that it is a Sikh
Gurdwara.
31. In the light of the propositions laid down in the
aforementioned judgments, we shall now consider whether the
H declaration made by the Tribunal that the institution in question
MAHANT JAWALA. SINGH v. SHIROMANI GURDWARA 115
PRABHANDHAK COMMITIEE [GS. SINGHVI, J.]
is a Sikh Gurdwara was legally correct and the High Court did A
not commit any error by confirming the order of the Tribunal.
32. At the outset, it needs to be mentioned that none of
the fifty-three persons who submitted petition under Section
7(1) of the Act for declaring the institution in question as a Sikh
8
Gurdwara responded to the notice issued by the Tribunal or
appeared before it to support their plea. Rather, some of them
filed petition under Section 8 asserting that their signatures
were obtained by fraud and at least four of them filed affidavits
in support of that assertion. It is a different thing that they did C
not pursue the petition filed under Section 8, which was
dismissed in default and the Tribunal erroneously discarded the
affidavits by observing that they were not examined by the
appellant. As a matter of fact, it was for the respondent to
examine those fifty-three persons or at least some of them.
Unfortunately, the Tribunal and the High Court did not direct the,ir D
attention towards this important omission and decided {he
matter by relying upon the oral evidence of those who were not
party to the petition filed under Section 7(1) and the revenue
records produced by the respondent.
E
33. Another important aspect which has been ignored both
by the Tribunal and the High Court is that the written statement
filed by the respondent was conspicuously silent on the twin
requirements of Section 16(2)(iii) of the Act. In the written
statement filed on behalf of the respondent, it was pleaded that F
Gurdwara in dispute was established in the memory of Baba
Kharak Singh, who was a Sikh saint or in the alternative it was
established by him for worship by Sikhs and has been so used
by Sikhs, that the case falls either under Section 16(2)(iii) or
16(2)(iv) [erroneously written as 16(2)(3) or 16(2)(4)) and that
existence of Samad hi does not alter the nature of the institution. G
In the amended written stater:nent, the case originally pleaded
was given up and an altogether new case was set up by
asserting that the Gurdwara in dispute was built in the memory
of the visit of Tenth Guru who came to this place from Dina and H
116 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Lohagarh and stayed there for some time and that the
Gurdwara is being used as a place of worship by Sikhs on
accourt of the traditional visit of Tenth Guru. Although, in the
amended written statement reference was not made to Section
16(2)(iv), the averments contained in paragraph 3 clearly
B suggests that the respondent wanted the institution to be
declared as a Sikh Gurdwara with reference to that section. Of
course, a casual reference was also made to Section 16(2)(iii)
by incorporating the following words:
"or in the alternative under Section 16(2)(iii)"
c
34. The Tribunal did not accept the plea of the respondent
that the Gurdwara was built in the memory of the visit of Tenth
Guru and held that Section 16(2)(iv) is not attracted in the case.
The Tribunal then adverted to the two conditions required to be
D fulfilled before an institution can be declared to be a Sikh
Gurdwara. As a sequel to this, the Tribunal made detailed
analysis of the evidence produced by the respondent and held
that the institution was established by Baba Kharak Singh, a
Sikh gentleman of piety and prestige in the iilaqa for the Sikhs
E for the purpose of pubic worship of Shri Guru Granth Sahib.
While recording this finding, the Tribunal overlooked the fact that
In the amended written statement the respondent had
altogether given up the plea that Baba Kharak Singh was a Sikh
saint and Gurdwara in dispute was established in his memory
F or in the alternative it was established by him for worship by
Sikhs. Interestingly, in paragraph 9 of the impugned judgment,
the High Court altogether discarded the plea that Baba Kharak
Singh had founded the institution by observing that there was
no evidence of any type, oral or documentary of the time of
G establishment of the institution pointing to the purpose of its
establishment. These contradictions in the findings of the
Tribunal and the High Court are too prominent to be overlooked.
35. The Tribunal and the High Court also became oblivious
of the fact that even though in paragraph 3 of the amended
H written statement filed on behalf of the respondent, an
MAHANT JAWALA SINGH v. SHI ROMANI GURDWARA 117
PRABHANDHAK COMMITIEE [GS. SINGHVI, J.]
alternative plea was taken for treating the institution in dispute A
as a Sikh Gurdwara under Section 16(2)(iii), but no foundation-
was laid for raising that plea in.asmuch as there was no
averment that the Gurdwara was established in the particular
year by the particular individual or a group of persons for use
by Sikhs for the purpose of public worship and was used for B
such worship by Sikhs before and at the time of presentation
of petition under Section 7(1 ). The manner in which the Tribunal
analyzed the evidence produced by the parties gives an
impression that it had assumed that a specific case had been
set up by the respondent in the context of Section 16(2)(iii) of c
the Act. In our view, in the absence of basic pleadings, the
Tribunal was not, at all, justified in examining the issue whether
the Gurdwara is a Sikh Gurdwara within the meaning of Section
16(2)(iii) and the findings recorded by it with reference to twin
requirements embodied in that section are liable to be treated 0
as non est. Unfortunately, the Division Bench of the High Court
also overlooked this fatal flaw in the case put forward by the
respondent and thereby compounded the grave errqr
committed by the Tribunal.
36. At this stage, it is appropriate to mention that the E
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 F
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 ~ulab
Singh is shown as non-occupancy/gair maurisi tenant. The G
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 H
118 SUPREME COURT REPORTS [2011) 2 S.C.R.
A 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, th'e Tribunal completely
s lost sight of the fact that all the witnesses examined on be~alf
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
c 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
0 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
E 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
F 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
G 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.
H 37. We also find that the Tribunal and the High Court have
MAHANT JAWALA SINGH v. SHIROMANi GURDWARA 119
PRABHANDHAK COMMITIEE [G.S. SINGHVI, J.]
.not given due weightage to the evidence, oral and documentary' A
produced by the appellant. Appellant, Jawala Singh, who
appeared as PW-8 and seven witnesses examined by him
consistently stated that the institution, that is, the Dera was
established by Nirmala faquir and Baba Bishan Singh was its
.first Mahant. The report of Tehsildar, Phul dated 16 Sawan B.
Saliflvat 1941,
I
report of the Revenue Superintendent dated 18
Har Samvat 1956, report of Nazar in Mahkama Aliya ljlas dated
18 Bhadon, Samvat 1956, order dated 28th Bhado Samvat
1956 passed by Mahkama Aliya ljlas and the order passed by
the then Maharaja Sahib on 24 Kartik Samvat 1956 show that c
Maharaja Bharpur Singh had given 56 Ghumaons of land to
Bhai Bir Singh in Sammat 1913. It is also borne out that in
Samvat 1914, the land In-both the patties was given by
Maharaja Bharpur Singh to Bhai Bir Singh on periodical lease.
In the report of Tehsildar, Phul it was noted· that there is no
0
mention regarding the ownership but inquiry from Lambardar
revealed that the ownership was of Bhai Bir Singh who was
shown as Nirmal Sadhu. In the report of Revenue
Superintendent, there is a mention of dera on the land and as
per the instructions given by the government on 29th Poh
Samvat 1954, the entry in the column of ownership was to be E
made in the name of Dera Granth Sahib as per the desire of
real owners. It was also indicated that the Sadhus residing in
the dera shall have no right to sell and mortgage the land. The
muafi was granted by Maharaja Bharpur Singh for dharamarth
i.e., to meet expenses of Sadhus and poor. The last order F
passed by the Maharaja shows that entry regarding ownership
of the Dera was to be made as proposed at the time of
settlement. Unfortunately, the High Court brushed aside the
documentary evidence produced by the appellant by recording
one line obs~rvation that his counsel could not establish its G
relevance. In oi..;· view, while hearing the appeal, it was duty of
the High Court to have adverted to the various documents ahd
then determined their relevance.
38. The findings recorded by the Tribunal and the High H
120 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 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
B 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
c Sahib and the High Court committed serious error by
dismissing the appeal.
39. Since we have held that the orders passed by the
Tribunal and the High Court are legally unsustainable, it is not
necessary to deal with argument advanced by the le& ... _J
D coumsel with reference to Section 4 of the 1991 Act.
40. In the result, the appeal is allowed. The impugned
judgment as also the order passed by the Tribunal are set aside.
As a sequel to this, the declaration made by the Tribunal that
E the institution in question is a Sikh Gurdwara is also set aside.
The parties are left to bear their own costs.
N.J. Appeal allowed.
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