Shiv Rattan Deo Singh vs Shircmani Gurdwara Parbandhak Committee, Amritsar and others

Kapur, J.—This is a Letters Patent appeal under Cl. 10 of the Letters Patent against the judgment of Abdul Rashid J., and relates to Bunga Raja Dhian Singh, which was founded by Raja Dhian Singh, the great-grandfather of the appellant, Raja Shiv Rattan Deo Singh. A notification under S. 3 (2), Sikh Gurdwaras Act, hereinafter called the Act, claiming the property now in dispute to belong to Siri Har Mandir Sahib was issued on 19th December 1927. Three application under S. 5 (1) claiming the Bunga to be private property were filed-one on 4th March 1928, by the present appellant which was No. 1606, another by Nikka Singh (No. 1604) and the third by Suchet Singh (NO. 1605). These were referred to the Tribunal and the Shiromani Gurdwara Parbandhak Committee and the Committee of Management were impleaded as respondents misnamed objectors.

On 16th May 1933, Nikka Singh withdrew his petition in favour of the present appellant. On 27th May 1933, the Raja and the Committee of Management entered into a compromise, which provided as follows:

(1) The local Gurdwara Parbandhak Committee at Amritsar through their duly authorised representatives admit that the Bunga known as ''The Bunga Raja Dhian Singh'' and the shops attached thereto are the property of Sri Raja Sahib Bahadur of Poonch.

(2) The Bunga excluding the shops is wakf for the use of the pilgrims visiting the Darbar Sahib, preference being given to those coming from Poonch, but Darbar Sahib, Amritsar, is not the owner of the Bunga. The income from the shops will be spent in the interests of the Bunga

(3) The management of the Bunga connected with the accommodation of the pilgrims, the cleanliness, watch and ward of the Bunga and the recitation of Granth Sahib would be with the L. G. P. C. and S. G. P. C., Amritsar, through a Bungai, whose appointment and dismissal will rest with the said Committee subject to the previous consent in writing of Sri Raja Sahib Bahadur of Poonch.

(4) The Bungai so appointed shall be under the supervision of the Committee and shall daily open and recite Granth Sahib in the Bunga. If the said Bungai interferes in any way in the interest of the Raja Sahib Bahadur connected with the Bunga, the S. G. P. C. will on getting the information from Sri Raja Sahib Bahadur appoint another Bungai.

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(8) The letting out of the shops attached to the Bunga by public auction and the ejectment of the tenants will rest with Sri Raja Sahib Bahadur or his authorised Agent. Any tenant found undesirable by the Committee will, on requisition by the latter, be changed by the agent. The rent of the shops will be collected by Shri Raja Sahib Bahadur''s Agent at Amritsar.

Clause 9 provided for the payment of Rs. 40 per mensem by the Raja Sahib for expenses inclusive of Bungai''s pay:

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(12) In case of any breach of any of the above said terms by either parties the matter will be referred to the Courts.

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This is signed by the Agent of the Raja Sahib and by S. Jowahar Singh, President, Local Parbandhak Committee. This was filed in Court on 31st May 1933, and on 7th June 1933, a decree was passed by the Tribunal declaring that His Highness the Raja of Poonch was the owner of the Bunga in dispute subject to the terms of the compromise (copy attached). On the same day Suchet Singh''s petition was dismissed.

Suchet Singh appealed to the High Court, but this was dismissed for want of prosecution on 9th October 1935, so also a petition for the reinstatement of the appeal on 23rd March 1936.

On 24th October 1926, a petition under S. 7 was made by 57 Sikhs and a Notification was issued dated 23rd July 1929, under S. 7 (3) of the Act. This Notification shows that in para. 4 giving the list of properties claimed, Bunga Raja Dhian Singh was claimed as being in possession of Shiromani Gurdwara-Parbandhak Committee, Amritsar. No notice was issued to the Raja Sahib as was required under sub-s. (4) of S. 7 of the Act. He could not, therefore, have had any suspicion or cause of suspicion that any petition had been put in, particularly when he knew that previously the property had been claimed as belonging to the Golden Temple and had under a compromise with the Committee of Management been declared to be his private property subject to certain conditions, which at the most reduced it to a trust property of which he was the trustee, though somebody else was the manager. No petition was filed under S. 8 of the Act, but Nikka Singh and Suchet Singh filed petitions under S. 10 of the Act. On 21st October 1935, Nikka Singh''s petition was dismissed in default, and on the same day the Advocate for the S. G. P. C. and the Managing Committee made a statement before the Tribunal to the effect that be had been told that the appeal of Suchet Singh to the High Court had been dismissed for non-prosecution and added:

Whatever decision is arrived at in the appeal made by the petitioner against the decision in petition No. 1605 will be accepted by the S. G. P. C. as the decision governing the present case.

On 18th November 1935, the Tribunal passed a final order dismissing Suchet Singh''s petition.

It appears that the compromise between the appellant and the Committee of Management was acted upon for considerable time, but we were told that sometime in the year 1937-38 the S.G.P.C. moved the Punjab Government for issuing a Notification under S. 9 of the Act, inasmuch as no petition had been made under S. 8. On 5th July 1938, the Provincial Government wrote to the Raja asking him if he had any objection to the Notification. Evidently there was some trouble between the Raja Sahib and the S. G. P. C. On 2nd November 1938, the Government referred the Raja Sahib to the Court, whether in terms of the compromise or otherwise it is not clear.

On 17th December 1938, the Raja Sahib brought a suit for a declaration that the property known as Bunga Raja Dhian Singh, including the shops of which the boundaries were given was not a Sikh Gurdwara but a building belonging to the plaintiff and for an injunction against the Shiromani Gurdwara Parbandhak Committee that they should be restrained from getting a Notification issued under S. 9 of the Act, and that they should withdraw the application made by them for getting a Notification issued and for a declaration that no Notification could issue under S. 9. The defendants in this suit were the S.G.P.C., the Local Gurdwara Parbandhak Committee of Darbar Sahib and 57 other persons who were signatories to the S. 7 petition. In Para 7 it was alleged that defendant 2 had been asked not to deny the rights of the plaintiff and the request that defendant 1 had made for the issue of a Notification be withdrawn and in future they should desist from doing any such thing, but they had refused to do so. A registered notice through a pleader had also been given, which had not been replied to, and therefore cause of action had arisen from the application of defendant 1 and their refusal and from the date of the letter of the Punjab Government dated 2nd November 1938. In Para. 10 prayer was made in terms of the claim which I have given above.

An application under O. 1, R. 8 was filed on 6th January 1939 but it was dismissed, so also a subsequent application which was filed on 21st January 1939, but was withdrawn. The defendants raised two preliminary objections with regard to the jurisdiction of the civil Court and limitation. The learned Subordinate Judge dismissed the suit holding that the civil Court had no jurisdiction and that the suit was barred by time. On appeal the Senior Subordinate Judge reversed the decree holding that the Court had jurisdiction and the suit was within time and overruled the objection with regard to the form of the suit because the plaintiff was in possession on the date of the suit.

On 7th May 1940, five persons Kesar Singh, Nand Singh, Brij Lal Singh, Nahar Singh and Gurcharan Singh took an appeal to the Lahore High Court making the Raja Sahib, the S.G.P.C. and others respondents. There is a note at the end of the memorandum of appeal, saying that respondents 4 to 55 need not be served as they are pro forma respondents.

The appeal was heard by Abdul Rashid J. who held that the Court was debarred from entertaining the suit became of Ss. 29 (2) and 31 of the Act. In the course of his judgment he said:

If a Court is debarred from taking cognizance of a suit, it cannot decide whether a previous compromise is binding on the 56 worshippers some of whom are the appellants before me. In order to decide what effect, it any, the compromise has on the present litigation, the Court must first acquire jurisdiction. If such jurisdiction cannot be acquired in view of the provisions of Ss. 29 and 31, the Court cannot go into this question at all.

He, therefore, allowed the appeal but gave a certificate under Para. 10 of the Letters Patent and an appeal was filed on 13th November 1941.

In this Letters Patent appeal the appellant made Kesar Singh, Nand Singh, Brij Lal Singh, Nahar Singh and Gurcharan Singh parties as also the S. G. P. O. and the Local Gurdwara Parbandhak Committee. Besides these 7 respondents, 52 others were made respondents. There is a note at the bottom of the memorandum of appeal after the parties'' names to the following effect:

Respondents Nos. 1 to 7 only need be served with notices. Nos. 8 to 59 were proceeded against ex parte in the Lower Courts and no notice was served on them in F. A. O. 84 of 1941 also. Sd/-Bakhshi Sita Ram, Advocate.

The appeal was heard by a Bench consisting of Harries C. J., and Din Mohammad J. Six points were raised before the Bench:

The original notification issued under sub-section (3) of section 7 was ultra vires of the Provincial Government inasmuch as the petition presented by the Sikh worshippers did not fall under sub-section (1) of section 7.

In so far as a declaration had already been made by the Sikh Gurdwaras Tribunal in favour of the appellant, no Court could make an order now which would not be in conformity with that declaration.

Shiromani Gurdwara Parbandhak Committee has perpetrated a fraud on the Raja Sahib in entering into a compromise with him on the one hand and in allowing the proceedings under S. 7 to continue on the other hand behind the back of the Raja Sahib.

No final decision should be made in the present suit so long as the proceedings under S. 10 brought at the instance of Suchet Singh were pending before the Gurdwara Tribunal.

Clause (ii) of S. 30 confers jurisdiction upon the Civil Courts to entertain a suit of this nature even in respect of a notified Sikh Gurdwara. If they are of the opinion that the requirements of the provisos to that clause are satisfied and what could be done after the notification can surely be achieved before it is issued.

Neither cl. (2) of S. 29 nor sub-s. (2) of S. 31 stands in the way of the appellant.

In this judgment Din Mohammad J., with whom Harries C. J., agreed held on the first point that the notification was altogether void and had no existence in the eye of law. On the second point he held that S. 37 of the Act was conclusive in the matter. On the third point be observed as follows:

On the question of fraud, the less said the better. It was within the knowledge of the Local Committee as well as that of Shiromani Gurdwara Parbandhak Committee that the Raja Sahib had already been declared to be an owner of the Banga in question and it ill behaved these respectable and responsible institutions to suppress this fact before the Tribunal or to permit the petitioners in that petition, which, as stated above, had been signed by their own officer to prosecute it any further. At any rate, it was their duty to have brought to the notice of the Tribunal that the real persons interested in the affair was the Raja Sahib and that no decision could be finally arrived at in the matter in his absence and behind his back.

The forth point was not decided but the Bench ordered the decision of the case to be postponed until such time as the matter pending before the Tribunal was finally decided, and in view of these findings no decision was given on question Nos. 5 and 6 which had been raised before the Court. The matter was kept pending and has finally been heard by us about six years after the judgment of that Bench which was given on 16th June 1944.

As a preliminary objection the respondents urged that one of the respondents Brij Lal Singh had been reported to have died some time ago but his legal representatives had not been brought on the record within the time prescribed and, therefore, the appeal abated as a whole. It may be remarked that there in no affidavit showing as to when Brij Lal Singh died, if he is really dead. The record shows that he was served in this appeal on 7th December 1941. We have not been told whether he was alive at the time when the Letters Patent Appeal was heard by the Lahore High Court, Notice was issued to him for an actual date on 23rd February 1948 and on this notice there is a remark of the postman dated 28th February 1948 that the addressee is dead. Beyond this we have been told nothing. There is no proof positive on the record to show that the man is really dead, but we have proceeded on the premises that he is dead.

The question to be decided then is whether under R. 4 of O. 22, Civil P. C., the right to sue survives against the remaining respondents. The suit as framed has no prayer, claiming any relief against the respondents petitioners in the S. 7 petition including Brij Lal Singh who is alleged to be dead. The claim of these S. 7 petitioners was that they were worshippers of the Gurdwara which was claimed to be a Sikh Gurdwara. This claim must be taken to be a claim on behalf of the whole community. At any rate, this was not a claim which was not common to the 57 persons who had filed the petition under S. 7 (1). The dispute was as to the nature of the Gurdwara by persons who claimed to be its worshippers. It cannot be said for certain that the personal representatives or the legal representatives of Brij Lal Singh are or would necessarily be worshippers of this alleged Gurdwara. Indeed, it is not necessary that they are even Sikhs although ordinarily one would not imagine them to be anything else. At any rate, the claim which had been put forward by these 57 persons was a claim common to all of them and was for and on behalf of the whole community. Even if one person had appealed the appeal would have been competent and that also without joining the other petitioners as respondents. In such circumstances the appeal does not abate either partially or as a whole. In AIR 1926 Lahore 167 a suit under S. 53, T. P. Act which is a representative suit it was held that the fact that three of the creditors (parties to the suit) died a long ago and their representatives had not been brought on the record did not cause the appeal to abate, as one creditor alone could have maintained the suit on behalf of all. In a Full Bench decision, Mahadeo Singh and Others Vs. Talib Ali and Others - a case of pre-emption - it was observed by Mukerji, J. at p. 796:

A pre-emptor''s right to pre-empt the whole of the property sold is independent of a similar right enjoyed by another person who stands in the same degree as regards the right of pre-emption as the other claimants. The fact, therefore, that two or more such claimants to a right of pre-emption join in one suit instead of bringing separate suits of their own, cannot convert the separate rights of the several plaintiffs into a joint right.....On the same principle, the fact that one of the plaintiff out of several has died and his legal representatives have not thought it fit to prosecute the case further, cannot affect adversely the right of the other plaintiffs.

Lord Macnaghten in his speech in Duke of Bedford v. Ellis, (1901) 83 L. T. 636; (1901 A. C. 1) said as follows:

It is impossible, I think, to read such judgments as those delivered by Lord Eldon.... in 1809, without seeing that Lord Eldon took as broad and liberal a view on this subject as anybody could desire. ''The strict rule,'' he said, in the later case, ''was that all persons materially interested in the subject of the suit, however numerous, ought to be parties.....but that being a general rule established for the convenient administration of justice, must not be adhered to in cases to which, consistently with practical convenience, it is incapable of application.'' ''It was better,'' he added, ''to go as far as possible towards justice than to deny it altogether.''.... As regards defendants, if you cannot make everybody interested party you must bring so many that it can be said they will fairly and honestly try the right.

Applying this principle I am of the opinion that it would not be going as far as possible towards justice than denying it altogether if we were to hold that by the death of one of the worshippers the whole appeal abates. It was not necessary in this case for five persons to have appealed. Only one, two, three or four or even more could have done it, and it cannot be said that anyone of them had any personal right which would be interfered with if the appeal was allowed to proceed. The question to be decided is whether the property in dispute is a place of public worship in which the whole of the Sikh community must be held to be interested and merely because one person is not there who was there at one time would not, in my opinion, affect the case. Mr. Mital for the respondents drew our attention to a judgment of their Lordships of the Privy Council reported in AIR 1933 183 (Privy Council) where it was held that in a suit instituted under O. 1, R. 8, Civil P. C., the decision in a former suit does not operate as res judicata by force of S. 11, Expln. (vi), unless the former suit was instituted in compliance with the rule in AIR 1934 366 (Lahore) was a shamalat case where the same rule was laid down. These cases, in my opinion, have no application to the facts of this case and I must, therefore, overrule the objection.

The point which has been pressed by Mr. Badri Das with great force was this that the notification of the Provincial Government under S. 7 (3) of the Act was not one which can be said to be under the Act because under that section a claim can only be made by 50 Sikhs who are worshippers of a Gurdwara for being declared a Sikh Gurdwara. This, according to the learned counsel, presupposes the existence of a Gurdwara, and if as a matter of fact there is no Gurdwara the Act cannot be said to apply. Din Mohammad J. had held in the Bench judgment of 16th June 1944, which I have referred to above, that the notification in the case was altogether invalid and had no existence in the eye of law because the building in respect of which the petition had been made was in fact not a Gurdwara and, therefore, no notification under S. 7 (3) was legally competent, because the building claimed was merely a rest house for the pilgrims and had even been declared to be the private property of the Raja Sahib of Poonch in the petition under S. 10 (should be under S. 5 of the Act). In order to give power to the Provincial Government to issue a notification under S. 7 (3), there has to be a Gurdwara in existence, because the claim under S. 7 (1) is that the Gurdwara is a Sikh Gurdwara. If as a matter of fact there is no Gurdwara but a private house or a resting place for pilgrims then there cannot be any petition with regard to it. In reply to this argument the learned advocate for the respondents submitted that the notification under S. 7 (3) in the present case was issued on 23rd July 1929. At that time no decision had been given in the S. 5 petition of the appellant, which decision was given on 17th June 1933, it cannot be said that the notification was ultra vires and, therefore, not under the Act. But this argument does not take into consideration the fact that the notification cannot issue unless there is a Gurdwara in existence. That there was not a Gurdwara in existence is shown by the fact that in the notification under S. 3 (2) of the Act issued on 13th December 1921 this very property was claimed at the instance of the Shiromani Gurdwara Parbandhak Committee to be property belonging to Siri Har Mandir Sahib and, therefore, not a Gurdwara and even though the decision of the Tribunal in S. 7 petition was after the notification was issued under S. 7 (3) that is, it was on 17th June 1933, yet at the time when the suit was brought the decision was there and it is on that particular date that we have to see as to what is the effect of the notification under S. 7 (3). If on that date the non-existence of the Gurdwara had been finally decided then notification under S. 7 (3) can be of no assistance to the defendants.

That the very basis of the Act that the place of worship which is claimed is a Gurdwara and the dispute is only whether it is Sikh Gurdwara or not is proved by the scheme of the Act. The preamble shows that the object of the Act is

to provide for the better administration of certain Sikh Gurdwaras and for inquiries into matters and settlement of disputes connected therewith.....

In the definition S. 2 (10) notified "Sikh Gurdwara" has been defined to mean "any Gurdwara declared by notification by the Provincial Government under the provisions of this Act to be a Sikh Gurdwara." In S. 7 (1) claim has to be made to a Gurdwara that it is a Sikh Gurdwara, and in S. 8 of the Act decision has to be given whether the Gurdwara is or is not a Sikh Gurdwara. Section 16 (1) also deals with the question whether a Gurdwara should or should not be declared a Sikh Gurdwara. Sub-section (2) of this section also says that if the Tribunal finds that the Gurdwara was established for the five purposes given in that sub-section or any one of them it shall decide that it should be declared to be a Sikh Gurdwara. Sub-section (3) of this section provides that if such a Gurdwara is held not to be a Sikh Gurdwara the jurisdiction of the Tribunal will be ousted. Under S. 31 (a) also proceedings cannot be continued relating to a Gurdwara in regard to which a notification has been published. A perusal of these various sections shows that throughout the object of the Act is to provide a machinery for the determination of the question whether a particular Gurdwara is or is not a Sikh Gurdwara, and if the institution is not a Gurdwara at all, then in my opinion the Act has no application, and I must, therefore, hold, agreeing with the judgment of Din Mohammad J., that a notification under S. 7 (3) becomes a bar only if it is with regard to a Gurdwara.

Section 37 of the Act comes in at this stage. Before the suit was brought a declaration, as I have said before, had been given by the Gurdwaras Tribunal that Bunga Raja Dhian Singh was the private property of the appellant subject to certain conditions. It is not necessary for me to reiterate that "Bungas are hostels where pilgrims coming from various parts of India to pay a visit to the Golden Temple stay", or ''''These hostels were founded by rich men, especially by the Rajas and were dedicated to the public as waqf property." (See Mehr Singh v. Socket Singh, 9 P. R. 1917 : (A. I. R. 1916 Lah. 98) and AIR 1933 1041 (Lahore)

Section 37 says:

Except as provided in this Act no Court shall pass any order or grant any decree or execute wholly or partly, any order or decree, if the effect of such order, decree or execution would be inconsistent with any decision of a tribunal, or any order passed on appeal therefrom, under the provisions of this part.

The finding having already been given in S. 5 proceedings that the property in dispute was not a Sikh Gurdwara or even a Gurdwara but private property, the applicability of the Act would, in my opinion, be ousted, because, firstly, the property in dispute is not a Gurdwara and, secondly, the Tribunal cannot give any decision against what has already been held in the previous proceedings. I have discussed this matter at some length in R.F.A. No. 73 of 1941 and it is not necessary for me to go over the whole ground again. I am adding it as an addendum at the end of the judgment and it should be read as part thereof. I would only like to quote from a judgment of their Lordships of the Privy Council in the Secretary of State v. Fahamidannissa Begum, 17 I, A. 40: (17 Cal. 590 P. C.), where the question for decision was whether the provisions of act IX [9] of 1847 were applicable to land re-formed on the site of a permanently-settled estate, the revenue of which estate had been paid without abatement since the permanent settlement. The intention and effect of this Act were held merely to change the mode of assessment and not to extend in any way the liability to assessment so as to include in such liability lands so re-formed. Lord Herschell said at page 53:

Their Lordships cannot hold that the Board of Revenue can, by purporting to exercise a jurisdiction which they did not possess, make their order upon such a matter final, and exempt themselves from the control of the civil Court.

This would also be a reply to the argument that under S. 7 (5) of the Act a notification issued under S. 7 (3) of the Act becomes conclusive proof of the fact that the provisions of sub-ss. (1), (2) and (3) have been complied with.

In further support of his submission the learned advocate for the respondents relied on AIR 1934 920 (Lahore) where it had been held that it was not open to a petitioner under S. 8 to dispute the existence of a Gurdwara, which may be interpreted to mean a place of worship. The only claim that can be made is that it is not a Sikh Gurdwara, i. e., a Sikh place of worship:

A petition under S. 7 can only be presented by 50 or more worshippers of a Gurdwara and, that petition along with a list of all rights, titles or interests in immovable properties, inclusive of the Gurdwara, and in all monetary endowments,..... is published by the Local Government by notification under S. 7 (3). When such a notification is published, an hereditary office holder, to take the present case only, can petition under S. 8 within 90 days that it should be declared not to be a Sikh Gurdwara. Further by virtue of S. 7 (5) the publication of a notification under the provisions of S. 7 (3) shall be conclusive proof that the provisions of sub-ss. 7 (1), (2), (3) and (4) have been duly complied with, that is, the petition was presented by 50 or more Sikh worshippers of the Gurdwara.....

It may be that when a petition is made under S. 8 the question that Gurdwara mentioned in S. 7 (3) was not a Gurdwara at all cannot be agitated, but whether the notification itself was under the Act or not is not a matter which has been discussed in this judgment.

In another Division Bench judgment, AIR 1937 786 (Lahore) Bhide J., said as follows:

It seems also appropriate that a petition with respect to a private place of worship should be competent under S. 8; for there is frequently a dispute whether the institution claimed under S. 7 is or is not a place of public worship and such a question can be suitably decided under S. 8. It may be that if a petitioner denies that an institution claimed as a Gurdwara under S. 7 is a place of worship at all whether public or private, no petition under S. 8 is competent and his proper remedy in such a case may be a petition under S. 10.

The rule laid down in this case seems to be opposed to the view in the previous Lahore case that I have quoted above. I am therefore of the opinion that (1) if there is no Gurdwara in fact the notification under S. 7 is de hors the Act; (2) any determination that a place is not Gurdwara bars not only the jurisdiction of the Courts to reagitate the question but it makes the Act inapplicable.

The next point for determination is whether a civil suit is barred either by the provisions of S. 29 (2) or of S. 31 (a). Section 29 runs as follows:

Notwithstanding anything contained in any other law or enactment for the time being in force no suit shall be instituted and no Court shall entertain or continue any suit or proceeding in so far as such suit or proceeding involves:

(1) any claim to, or prayer for the restoration of any person to an office in a Notified Sikh Gurdwara or any prayer for the restoration or establishment of any system of management of a Notified Sikh Gurdwara other than a system of management established under the provisions of Part III;

(2) any claim to, or prayer for the restoration of any person to an office in or any prayer for the restoration or establishment of any system of management of, any Gurdwara in respect of which a notification has been published in accordance with the provisions of sub-s. (3) of S. 7 unless and until it has been decided under the provisions of S. 16 that such Gurdwara should not be declared to be a Sikh Gurdwara.

Abulia Rashid J. had held that the second sub-section barred the institution of any suit with regard to "any claim to any Gurdwara in respect of which a notification has been published." Learned counsel for the appellant has submitted that on a proper interpretation of sub-ss. (1) and (2) it appears clear that this section deals only with a claim to or prayer for the restoration of any person to an office in a notified Sikh Gurdwara or a Gurdwara. In the first place, commas are no part, of the statute. In AIR 1929 69 (Privy Council) their Lordships said:

The truth is that, if the Article is read without the commas inserted in the print, as a Court of Law is bound to do, the meaning is reasonably clear.

The reference was to Art. 48, Limitation Act. In the Maharani of Burdwan v. Krishna Kamini Dasi, 14 Cal. 365 at p. 372 : (14 I. A. 30 P. C.), their Lordships of the Privy Council said:

But their Lordships think that it is an error to rely on punctuation in construing Acts of the Legislature.

Therefore, in order to interpret the two sub-sections of S. 29 we must not look at the commas, and reading these sub-sections in this manner it is clear to me that the second sub-section deals with a claim to an office or prayer for the restoration of any person to an office in any Gurdwara, and the words "any claim to" do not refer to the Gurdwara itself. If this interpretation of Abulia Rashid J., were correct; that the words ''''any claim to" refer to the Gurdwara, then this section tikes away the private rights of a citizen without giving him a right or a forum where these rights can be agitated. Under S. 7 (1) if a claim is made that a Gurdwara is a Sikh Gurdwara, then the only person who can make a claim that it is not a Sikh Gurdwara is an hereditary office-holder or 50 worshippers. In the present case, the plaintiff was neither an hereditary office-holder nor could one person become 50 worshippers and of a place which is not a Gurdwara, and, therefore, no claim could be made under S. 8, and under S. 9, then, a notification would have followed in the ordinary course and the private property of the plaintiff declared a Sikh Gurdwara without there being any forum or means of agitating that question. The law, as I have said, does not take away private rights without compensation or without giving the aggrieved party a right to have his claims tried before at proper Court of law.

The next section which was claimed to be a bar to the jurisdiction of civil Court is S. 31 (2) which provides:

(2) No Court shall continue any proceedings in so far as such proceedings involve any claim relating to a gurdwara in regard to which a notification has been published under the provisions of sub-s. (3) of S. 7, which could have been made in a petition forwarded to the Provincial Government under the provisions of Ss. 10 or 11 or presented to a tribunal under the provisions of S. 19, 20, 21 or 27, and was not so made, unless and until it has been decided under the provisions of S. 16 that such Gurdwara should not be declared to be a Sikh Gurdwara.

Here again the section contemplates the existence of a Gurdwara with regard to which a notification has issued under S. 7 (3). It will be noticed that in this sub-section, S. 8 has not been mentioned.

That there is no tribunal provided under the Act to try the question which would arise under claim made by 50 Sikh worshippers under S. 7 (1), claiming a Gurdwara to be a Sikh Gurdwara is clear from the scheme of the Act itself. Section 12 shows that the tribunal exists for the purpose of deciding claims made in accordance with this Act, and S. 14 requires the Local Government to forward to the tribunal all petitions received under S. 5, 6, 8, 10 or 11 and the tribunal to dispose of such petitions in accordance with the provisions of the Act. There is no reference in this section to a petition under S. 7. It was observed by Monroe, J., in AIR 1935 279 (Lahore)

No provision is made in this section for the recovery of possession of property included in a list prepared under S. 7 (2) in respect of which a petition has been forwarded under S. 10, and dismissed by the Tribunal and there is no power given expressly by the Act to the Tribunal to make, on the hearing of a petition under S. 10, a declaration that the property in suit belongs to a Sikh Gurdwara. When a petition under S. 10 is forwarded to the Tribunal, its sole duty is to dispose of the petition in accordance with the provisions of the Act. The inclusion of property in a list prepared under S. 7 (2) implies a claim that that property is the property of the Gurdwara mentioned in the petition which the list accompanies, but neither this petition nor the implied claim is before the Tribunal for adjudication: the only claim before it is the claim of the petitioner who under S. 10, claims that certain property belongs to him and, in my opinion, the only way in which the Tribunal can dispose of the petition is by decreeing the claim in whole or in part or by dismissing the petition, leaving the effect of the order to be determined afterwards, according to law, either the general law or the specific provisions of the Act.

It is no doubt true that in a later case AIR 1940 266 (Lahore) at p. 656: (A. I. R. 1940 Lah. 266), the learned Chief Justice, Young C. J., was of the opinion that a claim under S. 7 is also before the Tribunal for adjudication. But I am, with great respect, unable to agree because we cannot add S. 7 to the sections mentioned in S. 14 (1) of the Act. It appears to me, therefore, that the Act contemplates the determination of the question whether a Gurdwara is or is not a Sikh Gurdwara, whether the property claimed under S. 10 does or does not belong to the claimants and whether compensation can or cannot be given to a claimant.

That the jurisdiction of the civil Court is not barred by force of Ss. 29 and 31 is also supported by reference to the third sub-section of section 16, which provides that if the Tribunal comes to the decision that the Gurdwara is not a Sikh Gurdwara it ceases to have jurisdiction in all matters concerning such Gurdwara excepting the claim made in accordance with S. 8-a claim for restoration to office of an hereditary office-holder or a person who would have succeeded such office-holder under the system of management prevailing before the first day of January 1920. This would support the interpretation that S. 29 relates to a claim to an office in a Notified Sikh Gurdwara or a Gurdwara irrespective of the fact whether such a Gurdwara is or is not a Sikh Gurdwara, because in other matters the jurisdiction of the Tribunal is barred, and if the interpretation sought to be put on S. 29 by the respondents that the jurisdiction of the civil Court is barred even in regard to a Gurdwara which is not a Sikh Gurdwara, then no Court, tribunal or forum will remain for the determination of claims with regard to such Gurdwara simply because a notification under S. 7 (3) has been issued.

A further argument was sought to be introduced in favour of S. 29 being a bar to jurisdiction of the civil Courts by reference to the word "involve" in that section, and it was submitted that as a result of this word any claim, direct or indirect, which was with regard to a Gurdwara would be barred. I am unable to agree with this argument. "Involve" means something which is necessary resultant of another. In Banke Lal v. Jagat Narain, 23 ALL, 94 at p. 98: (1901 A.W.N. 8), the word "involve" has been held to imply a considerable degree of necessity. If this is the meaning, as indeed it is, the respondents cannot get much help from the use of this word.

I would, therefore, hold-

(1) that unless the institution is a Gurdwara no claim can be made under S. 7 (1) by 50 Sikh worshipers; and no notification can issue;

(2) that in this case the notification of 23rd July 1929 under S. 7 (1) was inconsistent with the claim made and published in the notification under S. 3 (2), dated 13th December 1927;

(3) that as a result of a previous adjudication dated 17th June 1933 the building in dispute in the present case is neither a Gurdwara nor a Sikh Gurdwara but merely private property of the plaintiff; and

(4) that neither section 29 nor S. 31 of the Act is a bar to the jurisdiction of the civil Court, and that if S. 29 bars any claim to a Gurdwara then the necessary consequence of this finding will be that there will be no Court competent to try the question whether a particular institution is or is not a Gurdwara.

On these findings and because of the reasons which I have given above, I am of the opinion that the view of Abdul Rashid J., was erroneous and the judgment or the learned Single Judge must therefore be set aside.

In the result, this appeal is allowed with costs throughout. The case will be returned to the trial Court for proceeding in accordance with law.

Parties have been directed to appear before the trial Court on 7th August 1950.

Soni, J.

I agree.

Addendum.

The Act is intended for the better management of the Sikh Gurdwara and the scheme shows that the intention was to provide a machinery for expeditious and cheap determination as to which of the Gurdwaras are Sikh Gurdwaras, what rights, titles or interests in immovable property belong to such Sikh Gurdwaras, what compensation, if any, is to be paid to persons claiming to be hereditary office-holders and how the management of such Sikh Gurdwaras is to be carried on. But there is one fundamental fact throughout the Act and that is that there has to be Gurdwara before the Act or the machinery of the Act can be set into motion.

Under S. 7 (1) the prayer in the petition is that Gurdwara is a Sikh Gurdwara, S. 8 is for determining whether a Gurdwara is or is not a Sikh Gurdwara and S. 11 provides for claims of a hereditary office-holder to compensation if a Gurdwara is declared a Sikh Gurdwara. Section 16 prescribes the principles according to which the determination of the question whether a Gurdwara is or is not a Sikh Gurdwara is to be made and if the Gurdwara is held not to be a Sikh Gurdwara, the jurisdiction of the Tribunal is ousted and no other question except the claims of an office-bearer to restoration of office can be tried, or the Act no longer applies. Under S. 17 again a notification issues if the Tribunal finds that the Gurdwara is a Sikh Gurdwara. Section 31 (2) precludes the jurisdiction of a civil Court to try a claim to a Gurdwara if a notification under S. 7 (3) has issued so as to allow claims to be tried in accordance with the provisions of the Act. All these sections in my opinion come into operation only if there is in fact a Gurdwara because in every section mentioned above it is something in connection with a Gurdwara which is to be determined. If the very basis-a Gurdwara-is not there the provisions of the Act are not attracted. And if there has been a determination binding on both parties that the building is not a Gurdwara but a ''Bunga'' or a hostel for pilgrims, I fail to see how the Provincial Government can under the Act issue a notification on the petition of 50 worshippers that the Gurdwara is claimed to be Sikh Gurdwara. If this was so it would be open to any 50 Sikhs to claim that a private residence which has nothing to do with worship of any kind is a Sikh Gurdwara and the mere notification under S. 7 (3) will make it one and put into motion on the whole machinery of the Act which would be absurd if not oppressive.

And this finding that if there is no Gurdwara in fact the notification purporting to be under S. 7 (3) of the Act is not under the Act is not blunted by the argument of the learned advocate of the appellants that this will contravene the provisions of sub-s. (5) of S. 7 which makes the publication of a notification under the provisions of sub-s. (3) of S. 7 to be conclusive proof that the provisions of sub-ss. (1), (2) and (3) have been complied with or that it will infringe the principle underlying S. 36 which takes away the power of any Court to question anything purporting to be done by the Provincial Government or by a Tribunal, in exercise of any powers vested in it by or under the Act.

Both Ss. 7 (5) and 36 of the Act would be applicable and bar the jurisdiction of the Court if the action complained of is within and under the Act. But if the action complained of is done arbitrarily, carelessly or oppressively it would be outside the Act and these sections would not bar the remedy of the defendants. In the present case a decision had already been given under S. 5 of the Act which was binding on the parties because of the compromise of 6th February 1930, and the notification was issued after this decision and, therefore, it would be an act done outside the Act and these sections would not be a bar.

In Mayor and Councillors of East Frementle v. Annois, 1902 A. C. 213 at p. 217, Lord Macnaghten delivering the judgment of their Lordships of the Privy Council said as follows:

The law has been settled for the last hundred years. If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action. He is without remedy unless a remedy is provided by the statute. That was distinctly laid down by Lord Kenyon and Buller J., and their view was approved by Abbot. C. J., and the Court of King''s Bench. At the same time Abbott C. J., observed that if in doing the act authorised the trustees acted arbitrarily, carelessly or oppressively, the law in his opinion had provided a remedy. Those words, ''arbitrarily, carelessly, or oppressively,'' ware taken from the judgment of Gibbs C. J. in Sutton v. Clarke, decided in (1815) 16 B. R. 563: (6 Taunt 29).

In Galloway v. Corporation of London, (1864) 2 De. G. J. & S. 213 at p. 229: (142 R. R. 24) in simpler language Turner L. J., observed in a somewhat similar case that "such powers are at all times to be exercised bona fide and with judgment and discretion." Lord Macnaghten at p. 218 of the report (1902 A. C.) said: "In a word the only question is, has the power been exceeded? Abuse is only one form of excess.

The Lord Chancellor in Frewin v. Lewis, (1838) 48 R. R. 88 at p. 89 : (4 My. & Cr. 249) giving the principles of Courts'' jurisdiction over public functionaries said as follows:

Many cases have come judicially before me, in which I have been called upon to act upon this principle; more especially in the instance of railway companies, canal companies and other bodies incorporated by Acts of Parliament, as to which, while the Court avoids interfering with that which they do while keeping within the limits of their jurisdiction, it takes care to confine them within those limits: and if under pretence of an authority which the law does give them to a certain extent, they go beyond the line of their authority, and infringe or violate the rights of others, they become, like all other individuals, amenable to the jurisdiction of this Court by injunction.

In Secretary of State v. Fehmidannissa Begum, 17 I. A. 40: (17 Cal. 590 P. C.)., the question for decision was whether the provisions of Act IX [9] of 1847 were applicable to land reformed on the site of a permanently settled estate the revenue of which has been paid without abatement since the permanent settlement. The intention and effect of Act IX [9] of 1847 were held merely to change the mode of assessment and not to extend in any way the liability to assessment so as to include in such liability land so reformed. It was, therefore, held that where the Board of Revenue has subjected land included in the permanent settlement to an additional assessment purporting to act under the Act the civil Court has jurisdiction to review such decision and to declare the act of the Board ultra vires. Delivering the judgment of their Lordships of the Privy Council Lord Herschell said at p. 53:

Their Lordships cannot hold that the Board of Revenue can by purporting to exercise a jurisdiction which they do not possess, make their order upon such a matter final and exempt themselves from the control of the Civil Courts.

See also AIR 1940 377 (Lahore) , AIR 1940 401 (Lahore) and AIR 1941 234 (Lahore)