Full Judgment Text
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PETITIONER:
PRITAM DASS MAHANT
Vs.
RESPONDENT:
SHIROMANI GURUDWARA PRABANDHAK COMMITTEE
DATE OF JUDGMENT16/01/1983
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
DESAI, D.A.
MISRA RANGNATH
CITATION:
1984 AIR 858 1984 SCR (2) 564
1984 SCC (2) 600 1984 SCALE (1)327
CITATOR INFO :
R 1984 SC1059 (19)
ACT:
Sikh Gurudwara Act, 1925, as amended by the Amendment
Act I of 1959-Section 16(2)-Whether the institution Dera
Bhai Bhagtu was a Sikh Gurudwar? Whether mere recitation of
Guru Granth Sahib without anything more ? Distinctive
features of Sikhism and Sikh temples-Court’s duty to record
positive findings in terms of Section 16-Appreciation of
the evidence of a witness. The fact that he belongs to a
particular political party or the other does not change the
veracity of his evidence.
HEADNOTE:
Sixty five persons claiming to be members of the Sikh
community moved an application before the State Government
under Section 7(1) of the Sikh Gurudwara Act, 1925 to have a
religious institution in village Ramgarh (also known as
Bhagtuana of Faridkot tehsil, declared to be a Sikh
Gurudwara. The State Government notified the said
application in the Punjab Government Gazette in terms of
Section 7(3) of the Act on 18th October, 1963. Upon this the
appellant made an application under Section 8 and 10 of the
Act claiming that the institution was not a Sikh Gurudwara
but an Udasi institution known as Dera Bhai Bhagtu. The
application was referred to the Sikh Gurudwara Tribunal for
adjudication. The petition was resisted by the respondent
Shiromani Gurudwara Prabandhak Committee on three grounds:
(i) that the appellant was not competent to move the
petition under section 7 of the Act as he was not a
hereditary office-holder, (ii) that the provisions of the
Act are not ultravires the Constitution; and (iii) that the
institution in dispute was a Sikh Gurudwara. The Tribunal
held against the respondent and in favour of the appellant
on contention(1). Since the second contention was not
pressed and the third question was the only issue, the
Tribunal held that the institution was a Sikh Gurudwara. In
appeal, the Punjab and Haryana High Court confirmed the
Tribunal’s findings. Hence the appeal by Special Leave of
the Court.
Allowing the appeal, the Court
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^
HELD: 1.1. The religious institution, Dera Bhai Bhagtu
is not Sikh Gurudwara. On the materials on record, the
findings recorded by the Tribunal as well as the High Court
are wholly unsupportable to satisfy the tests indicated in
law for determining the character of the institution. [581D]
1.2. The findings of the High Court clearly show that
the four important and most relevant aspects of the case as
disclosed in the evidence were completely overlooked or
side-tracked by the High Court. They are: (i) there are
Samadhs on the premises of the institution; (ii) there are
idols and photos of Hindu deities; (iii) Bhai Bhagtu was a
Udasi Saint; and (iv) succession was from Guru to Chela.
565
The petition filed by the appellant under s.8 of the Act
contained a clear averment that the institution had been set
up by Bhai Bhagtu who was a Udasi Saint and the presence of
three Samadhs of (1) Bhai Bhagtu, (2) Baba Paras Ram Ji, and
(3) Mahant Sahib Dass Ji, was also asserted. In the written
statement the respondent, after a vague denial, had admitted
the institution to have been founded by Bhai Bhagtu. Pritam
Dass, the appellant did support his case. Ordinarily his
evidence would have been treated as interested as he happens
to be the party but his assertions have been well
corroborated. The same is strengthened by the evidence of
all respondent’s witnesses. The evidence of witnesses
clearly indicates: (i) that there are atleast two samadhs in
the premises of the institution-one being of Bhai Bhagtu and
the other of his mother; (ii) the existence of the idol of
Baba Srichand, the founder of the Udasi Sect in the
premises. Clearly the Sikhs would not permit the idol of
Baba Srichand in a Gurudwara while Udasis would ordinarily
install such an idol to perpetuate the memory of the founder
of their sect; (iii) the succession was from Guru to Chela;
and (iv) there are photos of Hindu deities in the
institution. These facts without anything more would be
sufficient to reject the case of the respondent that the
institution is a Sikh Gurudwara. [579A-C; G; 580G-H]
1.4. From the very fact that Guru Granth Sahib was
recited in the institution no support can be drawn for the
claim that the institution was a Sikh Gurudwara. It is well
established that Udasis are midway between Sikhs on the one
hand and the Hindus on the other. Srichand son of Guru
Nanak, the founder of Sikhism, had broken away and set up
the Udasi sect. [581B-C]
2.1. Although for the purpose of historical research
and analysis on the subject like Sikhs and Sikh temples, the
forum of a court of law is not ideal, yet, if the statute
enjoins the court to decide such questions, the court has
got to discharge the responsibility. [569D]
2.2. The court has been called upon to decide whether
the institution in question is a Sikh Gurudwara. While
considering this question the Court has to take into
consideration all the circumstances which favour or militate
against the institution being a Sikh Gurudwara. In the very
nature of things and in view of the requirements of sub-
s.(2) of s. 16 it becomes necessary to consider whether the
institution being in charge of a Udasi saint, the existence
of samadhs of Udasi saints and worship thereof, or the
existence of the idols and absence of a granthi and
succession to the institution from guru to chela are all
relevant considerations and the Court has to consider them
if there is evidence on the record. In the instant case
evidence has been adduced on behalf of the appellant about
the existence of samadhs and the various idols, the absence
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of a granthi and succession to the institution from guru to
chela. The appellant cannot, therefore, be prevented from
urging the aforesaid circumstances. [573F-H; 574A]
2.3. Courts cannot discard the evidence of witnesses of
one side by simply saying that the oral testimony is
interested and hardly any credible, when witnesses on either
side have come to depose on oath. Here, the grounds on which
the evidence adduced on behalf of the appellant has been
discarded may equally apply to the evidence adduced on
behalf of the respondent. The Court should have considered
the worth of the evidence of each witness and should have
given reasons for disbelieving the same on merit. A bald
observation that the witnesses produced on behalf for the
appellant are interested must be deprecated. The courts had
to decide the
566
question in view of the provisions of sub-s.(2) of s.16 of
the Act and they had to record a positive finding in the
light of sub-s.(2) of s.16. Unless the claim falls within
one or the other of the categories enumerated in sub-
section(2) of s.16, the institution cannot be declared to be
a Sikh Gurudwara [577B-D; 578C]
3.1. One of the most fascinating aspects of Sikhism is
the process which began with human Gurus, continued during
the period of duality in which there were human Gurus and a
collection of sacred writings and ended with the present
situation in which full authority is enjoined by the
scripture. In every respect the scripture is what the Gurus
were. [569G]
Both the Gurus and the Book deserve respect, which they
are accorded because of the Bani which they express, the
word of divine truth. Therefore, it was possible for Guru
Arjan, the fifth in the human line, to bow before the
collection which he had complied and installed in the newly
built Darbar Sahib in 1604 for he was acknowledged the
higher authority of the Bani due to the personal importance
and significance which he possessed as Guru. [569H; 570A]
The Sikh Gurus have much in common with other
preceptors in Indian tradition but their history and
contribution is distinctive. They were not Brahmins, they
did not see their calling to be that of expounding Vedas,
they taught in vernacular not Sanskrit and their message was
for everyone. They were ten in number each remaining
faithful to the teachings of Guru Nanak, the first Guru and
when their line was ended by a conscious decision of Guru
Gobind Singh, the last Guru, succession was invested in a
collection of teachings which was given the title of Guru
Granth Sahib. This is now the Guru of the Sikhs. [570B-C]
An important characteristic of the teachings of the
Sikh Gurus is their emphasis upon the message, the Bani. It
is this stress which made possible the transfer of Guruship
to the scripture. The human Gurus were the instruments
through whom the voice of the God became audible. [570D]
The holiest book of the Sikhs is Guru Granth Sahib
complied by the Fifth Master, Guru Arjun. It is the Bible of
Sikhs After giving his followers a central place of worship,
Hari-Mandir, he wanted to give them a holy book. So he
collected the hymns of the first four Gurus and to these he
added his own. Now this Sri Guru Granth Sahib is a living
Guru of the Sikhs. Guru means the guide. Guru Granth Sahib
gives light and shows the path to the suffering humanity.
Wherever a believer in Sikhism is in trouble or is depressed
he reads hymns from the Granth. Whenever the Sikhs needed
guidance or counsel, they should assemble before the Granth
in all sincerity and decide their further line of action in
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the light of teachings of the Master, as embodied in the
Granth. The noble ideas embodied in the Granth would live
for ever and show people the path to blisss and happiness.
[570E-F; 571B]
3.2. Temples are found almost in every religion but
there are some differences between the Sikh temples and
those of other religions. The Sikh Gurudwaras have the
following distinctive features: [571C]
1. Sikh temples are not the place of idol worship as
the Hindu temples are. There is no place for idol worship in
a Gurudwara. The central object of worship
567
in a Gurudwara is Sri Guru Granth Sakib, the holy book. The
pattern of worship consists of two main items: reading of
the holy hymns followed by their explanation by some learned
man, not necessarily a particular Granthi and then singing
of some passages from the Holy Granth. The former is called
Katha and the second is called Kirtan. A Sikh thus worships
the Holy Words that are written in the Granth Sahib, the
words or Shabada about the Eternal Truth or God. No idol or
painting of any Guru can be worshipped. [571C-D]
2. Sikh worship in the Gurudwara is a congregational
worship, whereas Hindu temples are meant for individual
worship. A Sikh does the individual worship at home when he
recites Gurbani daily. Some scriptures meant for this
purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is
the collective body of Sikhs who meet every day in the
Gurudwara. [571E-F]
3. Gurudwara is a place where a copy of Guru Granth
Sahib is installed. The unique and distinguishing feature
would always be the Nishan Sahib, a flagstaff with a yellow
flag of Sikhism flying from it. This serves as a symbol of
the Sikh presence. It enables the travellers, whether they
be Sikhs or not, to know where hospitality is available.
There may be complexity of rooms in a Gurudwara for the
building may also serve as a school, or where children are
taught the rudiments of Sikhism as well as a rest centre for
travellers. Often there will be a kitchen where food can be
prepared though langar itself might take place in the
yawning. Sometimes the Gurudwara will also be used as a
clinic. But its pivotal point is the place of worship and
the main room will be that in which the Guru Granth Sahib is
installed where the community gathers for diwan. The focal
point in this room will be the book itself.
[571G-H; 572A]
3.3. The sine qua non for an institution being a Sikh
Gurudwara is that there should be established Guru Granth
Sahib and the worship of the same by the congregation, and a
Nishan Sahib as indicated in the earlier part of the
Judgment. There may be other rooms of the institution meant
for other purposes but the crucial test is the existence of
Guru Granth Sahib and the worship thereof by the
congregation and Nishan Sahib. It is not necessary that
there must be a granthi in a Gurudwara. Any learned person
can read Guru Granth Sahib and explain to the congregation.
[572B-C]
Hem Singh and Others v. Basant Das & Anr. (1935-36)
L.R. 631 IA 180;
Bawa Ishar Dass & Others v. Dr. Mohan Singh and Others,
AIR 1939 Lah. 239
Arjan Singh v. Inder Das 15 Lah. 247;
Harnam Singh v. Gurdial Singh [1967] 2 SCR 739.
Mahant Dharam Das etc. v. State of Punjab & Ors. [1975]
3 SCR 160.
Sohan Das v. Bela Singh & Ors. AIR 1934 Lah. 180
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referred to,
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1983 of
1970
From Judgment and Decree dated 29-7-69 of the Punjab &
Haryana High Court in F.A.O. No. 35/66.
568
Naunit Lal, K. Vasdev and Ms. V. Grover for the
appellant.
V.M. Phadke and Harbans Singh for the respondent.
The Judgment of the court was delivered by
MISRA, J. The present appeal by special leave is
directed against the judgment and order dated 29th July,
1969 of the High Court of Punjab and Haryana at Chandigarh.
The dispute in this appeal centres around a religious
institution in village Ramgarh (also known a Bhagtuana),
tehsil Faridkot, district Bhatinda. This village was
previously in the erstwhile Nabha State which merged with
Pepsu and after the reorganisation of the States, became a
part of the Punjab State in 1956. Sixty-five persons
claiming to be members of the Sikh community moved an
application before the State Government under s. 7 (1) of
the Sikh Gurdwara Act, 1925 (hereinafter referred to as the
Act), as amended by the Amendment Act I of 1959, to have the
institution declared to be a Sikh Gurdwara. The State
Government notified the said application in the Punjab
Gazette in terms of s. 7 (3) of the Act on 18th October,
1963. Upon this the appellant made an application under ss.
8 and 10 of the Act claiming that the institution was not a
Sikh Gurdwara but an Udasi institution known as Dera Bhai
hagtu. This application was referred by the State Government
to the Sikh Gurdwara Tribunal for adjudication. It was
contended by the appellant that throughout its long history
the institution has been an Udasi institution. This
institution was not established for use by Sikhs for public
worship. nor was it founded in the memory of a Sikh Martyr,
saint or a historical person. It has never been used for
public worship by the Sikhs. The institution was the Dera of
Udasi Bhekh and the objects of worship are idols of Gola
Sahib and of Baba Srichand, and the various samadhs.
The petition was resisted by the respondent Shiromani
Gurdwara Prabandhak Committee on three grounds: (1) that the
appellant was not competent to move the petition under s.7
of the Act because he was not a hereditary office holder,
(2) that the provisions of the Act are not ultra vires the
Constitution, and (3) that the institution in dispute was a
Sikh Gurdwara.
On the pleadings of the parties the Tribunal framed
three issues: whether the provisions of the Act are ultra
vires the Constitution,
569
(2) whether the appellant was a hereditary office holder,
and (3) whether the institution in dispute was a Sikh
Guradwara. Issue No. 1 was not pressed and, therefore, the
Tribunal in conformity with the previous decisions held the
provisions of the Act to be intra vires the Constitution. On
the second issue the Tribunal recorded a finding in favour
of the appellant. On the third issue, the Tribunal held that
the disputed institution was a Sikh Gurdwara.
The appellant feeling aggrieved by the judgment of the
Tribunal took up the matter in appeal to the High Court and
the High Court in its turn confirmed the findings of the
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Tribunal and dismissed the appeal by the impugned judgment.
The appellant has now come to his Court on obtaining special
leave and the only issue that survives for consideration by
this Court is issue No.3, that is, whether the institution
in dispute is a Sikh Gurdwara.
Before dealing with the points urged by the counsel for
the parties it would be appropriate at this stage to know
the distinctive features of Sikhism and Sikh temples.
Although for the purpose of historical research and analysis
on such subject, the forum of a court of law is not ideal
yet if the statute enjoins the Court to decide such
questions, the Court has got to discharge the
responsibility. Section 16 (1) of the Act provides:
"16 (1). Notwithstanding anything contained in any
other law in force if in any proceeding before a
tribunal it is disputed that a gurdwara should or
should not be declared to be a Sikh Gurdwara, the
tribunal shall, before enquiring into any other matter
in dispute relating to the said gurdwara, decide
whether it should or should not be declared a Sikh
Gurdwara in accordance with the provisions of sub-
section (2)."
One of the most fascinating aspects of Sikhism is the
process which began with human Gurus, continued during the
period of duality in which there were human Gurus and a
collection of sacred writings and ended with the present
situation in which full authority is enjoined by the
scripture. In every respect the scripture is what the Gurus
were.
Both the Gurus and the Book deserve respect, which they
are accorded because of the Bani which they express, the
word of divine truth. Therefore, it was possible for Guru
Arjan, the fifth in the human line, to bow before the
collection which he had compiled and installed
570
in the newly built Darbar Sahib in 1604 for he was
acknowledged the higher authority of the Banidue to the
personal importance and significance which he possessed as
Guru.
The Sikh Gurus have much in common with other
preceptors in Indian tradition but their history and
contribution is distinctive. They were not Brahmins, they
did not see their calling to be that of expounding Vedas,
they taught in vernacular not Sanskrit and their message was
for everyone. They were ten in number each remaining
faithful to the teachings of Guru Nanak, the first Guru and
when their line was ended by a conscious decision of Guru
Gobind Singh, the last Guru, succession was invested in a
collection of teachings which was given the title of Guru
Granth Sahib. This is now the Guru of the Sikhs.
An important characteristic of the teachings of the
Sikh Gurus is their emphasis upon the message, the Bani. It
is this stress which made possible the transfer of Guruship
to the scripture. The human Gurus were the instruments
through whom the voice of God became audible.
The holiest book of the Sikhs is Guru Granth Sahib
compiled by the Fifth Master, Guru Arjan. It is the Bible of
Sikhs. After giving his followers a central place of
worship, Hari-mandir, he wanted to give them a holy book. So
he collected the hymns of the first four Gurus and to these
he added his own. Now this Sri Guru Granth Sahib is a living
Guru of the Sikhs. Guru means the guide. Guru Granth Sahib
gives light and shows the path to the suffering humanity.
Wherever a believer in Sikhism is in trouble or is depressed
he reads hymns from the Granth.
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When Guru Gobind Singh felt that his worldly sojourn
was near, he made the fact known to his disciples. The
disciples asked him as to who would be their Guru in future.
The Guru immediately placed five pies and a coconut before
the holy Granth, bowed his head before it and said-
"The Eternal Father willed, and I raised the Panth.
All my Sikhs are ordained to believe the Granth as
their preceptor.
Have faith in the holy Granth as your Master and
consider it.
The visible manifestation of the Gurus.
He who hath a pure heart will seek guidance from its
holy words".
571
The Guru repeated these words and told the disciples
not to grieve at his departure. It was true that they would
not see his body in its physical manifestation but he would
be ever present among the Khalsas. Whenever the Sikhs needed
guidance or counsel, they should assemble before the Granth
in all sincerity and decide their future line of action in
the light of teachings of the Master, as embodied in the
Granth. The noble ideas embodied in the Granth would live
for ever and show people the path to bills and happiness.
Temples are found almost in every religion but there
are some difference between the Sikh temples and those of
other religions. The sikh Gurdwaras have the following
distinctive features:
1. Sikh temples are not the place of idol worship as
the Hindu temples are. There is no place for idol worship in
a Gurdwara. The central object of worship in a Gurdwara is
Sri Guru Granth Sahib, the holy book. The pattern of worship
consists of two main items: reading of the holy hymns
followed by their explanation by some learned man, not
necessarily a particular Granthi and then singing of some
passages from the Holy Granth. The former is called Katha
and the second is called Kirtan. A Sikh thus worships the
Holy Words that are written in the Granth Sahib, the Words
or Shabada about the Eternal Truth or God. No idol or
painting of any Guru can be worshipped.
2 Sikh worship in the Gurdwara is a congregational
worship, whereas Hindu temples are meant for individual
worship. A Sikh does the individual worship at home when he
recites Gurbani daily. Some scriptures meant for this
purpose are Japji, Jaap, Rehras, Kirtan Sohila. Sangat is
the collective body of Sikhs who meet every day in the
Gurdwara.
3. Gurdwara is a place where a copy of Guru Granth
Sahib is installed. The unique and distinguishing feature
would always be the Nishan Sahib, a flagstaff with a yellow
flag of Sikhism flying from it. This serves as a symbol of
the Sikh presence. It enables the travellers, whether they
be Sikhs or not to know where hospitality is available.
There may be complexity of rooms in a Gurdwara for the
building may also serve as a school; or where children are
taught the rudiments of Sikhism as well as a rest centre for
travellers. Often there will. be a kitchen where food can be
prepared though langar itself might take place in the
yawning. Sometimes the Gurdwara will also be used as a
clinic. But its Pivotal point is the place of worship and
the main room
572
will be that in which the Guru Granth Sahib is installed
where the community gathers for diwan. The focal point in
this room will be the book itself.
From the foregoing discussion it is evident that the
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sine qua non for an institution being a Sikh Gurdwara is
that there should be established Guru Granth Sahib and the
worship of the same by the congregation, and a Nishan Sahib
as indicated in the earlier part of the judgment. There may
be other rooms of the institution meant for other purposes
but the crucial test is the existence of Guru Granth Sahib
and the worship thereof by the congregation and Nishan
Sahib. It is not necessary that there must be a granthi in a
Gurdwara. Any learned person can read Guru Granth Sahib and
explain to the congregation.
With this preliminary about the distinctive features of
a Sikh temple we proceed to deal with the contentions of the
counsel for the parties.
Shri Naunit Lal, counsel for the appellant contended
that the High Court has misread the evidence and that has
vitiated its finding. He referred to the material portions
of the judgment and the evidence of the parties to support
his contention. on perusal of the judgment and the relevant
evidence we do not find any misreading of evidence by the
High Court. This contention, therefore, has no force. We,
however, find that the High Court proceeded on the
assumption that admittedly Bhai Bhagtu was a Sikh saint and
that the disputed institution was established in his memory.
This would be evident from the following observation made by
he High Court.
"On an overall consideration of this aspect we are
inclined to accept the contention of Mr. Shant that
admittedly Bhai Bagtu was a Sikh saint and this
institution was established in his memory and as such
the case of the respondent would also come within the
ambit of s. 16(2) (iv) of the Sikh Gurudwara Act".
But this observation is not warranted from the
pleadings or the evidence of the parties. Pritam Dass, the
appellant, as P.W.S. in his deposition has categorically
stated: "Bhai Bhagtu was an Udasi Fahir". In the pleadings
also the appellant set up that Bhai Bhagtu was an Udasi
saint and the institution was a Dera of the Udasi sect,
573
while the respondent, on the other hand, in its reply stated
that Bhai Bhagtu was a Sikh saint and the institution was
established in the memory of that Sikh saint. In this state
of pleadings and the evidence adduced by the parties it will
not be correct to say that admittedly Bhai Bhagtu was a
Sikhsaint and that this institution was established in his
memory. Rather this was the only disputed question to be
decided by the Court. Thus while holding that there is no
misreading of evidence we find that there is misreading of
the pleadings of the parties.
It was next contended for the appellant that the
appellant of udasi set being incharge of the institution in
question, the succession to the institution being from Guru
to Chela, the institution being recorded as Dera of Udasi
sect in some of the revenue records, the existence and
worship of various idols and samadhs within the precincts of
the institution and the absence of a granthi in the
institution are all in-compatible with the institution being
a Sikh Gurdwara.
Shri M. N. Phadke appearing for the respondent on the
other hand has contended that (1) the points which were
never urged in the courts below could not be allowed to be
raised for the first time in this Court; (2) in any case the
existence of samadhs and idols within the precincts of the
institution and the worship thereof, and the absence of a
granthi and the succession to the institution from guru to
chela are not destructive of the institution being a Sikh
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Gurdwara; (3) the finding of the High Court that the
institution in question is a Sikh Gurdwara is fully
warranted by the evidence on record, and (4) the nature of
the institution has to be decided in the light of sub-s. (2)
of s. 16 of the Sikh Gurdwara Act.
The Court has been called upon to decide whether the
institution in question is a Sikh Gurdwara. While
considering this question the Court has to take into
consideration all the circumstances which favour or militate
against the institution being a Sikh Gurdwara. In the very
nature of things and in view of the requirements of sub-s.
(2) of s. 16 it becomes necessary to consider whether the
institution being in charge of an Uadasi saint, the
existence of samadhs of Udasi saints and worship thereof, or
the existence of the idols and absence of a granthi and
succession to the institution from guru to chela are all
relevant considerations and the Court has to consider them
if there is evidence on the record. In the instant case
evidence has been adduced on behalf of the appellant about
the existence of samadhs and the various idols, the absence
of a granthi and succession to the institution
574
from guru to chela. We see no reason why the appellant be
prevented from urging the aforesaid circumstances.
On the question whether the existence of samadhs and of
the idols and the absence of a granthi or succession to the
institution from guru to chela militates against the
institution being a Sikh Gurdwara the counsel for the
parties have adduced evidence in support of their respective
contentions. The counsel for the parties have also cited
cases in support of their respective contentions.
The counsel for the appellant relied on Hem Singh &
Ors. v. Basant Das & Anr(1). In that case the question for
consideration was whether Udasis are Sikhs. The court held
that Udasis are not Sikhs for the purposes of Sikh Gurdwara
Act. Although Guru Nanak founded Sikhism as a new religion
by sweeping away idolatry and polytheism, Sri Chand, the son
of Guru Nanak, the founder of the Udasis, was himself not a
Sikh but a Hindu. No reconciliation between the Sikhs and
the Udasis ever took place. The Udasis are in consequence
not Sikhs, but schismatics who separated in the earliest
days of Sikhism and never merged with the followers of the
Gurus.
Reliance was next placed upon Bawa Ishar Dass & ors. v.
Dr. Mohan Singh & ors (2) The Court held:
"..it has been established that the Mahants have
all along been Udasis, that the institution was an
Udasi monastery, that the Guru Granth Sahib was read
there by the Udasi Mahant and that Sikhs may have
attended these readings but that all other ceremonies,
observed by Udasis and Hindus, were performed at the
institution. It cannot be held from the mere fact that
the Udasis also read the Guru Granth Sahib a book which
they do venerate, that the Sikhs should be associated
in the management of this genuine Udasis institution.
It was held by a Division Bench of this Court in 15
Lah. 247(2) that the Udasi order constitutes a separate
sect, distinct from the orthodox Sikhs and that though
they have retained many Hindu beliefs and practices,
yet in the wider sense of the term they may also be
Sikhs. They occupy an intermediate position between
strictly orthodox Sikhs and Hindus. The Udasis are in
fact a monastic
575
Order in their origin and are followers of Bawa Siri
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Chand, son of the first Guru though they worship
smadhs, etc. they do reverence the Granth Sahib without
completely renouncing Hinduism. They are often in
charge of the village Dharamsala or Gurdwara, which is
a Sikh institution but in other cases the Sadh and his
chelas constitute a monastery or college. Owing to
their intermediate positions, it is possible for Udasis
to be in charge of a Sikh Gurudwara properly so
called, but it does not follow that that institution is
a sikh Gurudwara and not a true Udasi institution
merely because the Granth Sahib is read".
In Harnam Singh v. Gurdial Singh on an analysis of
various decisions this Court held:
"These decisions clearly indicate the principle that
though the Sikh Guru Granth Sahib is read in the
shrines managed by the by the members of the Udasi
Sect, that was not enough to hold that those shrines
were Sikh Gurdwaras. In the case before us, the more
fact that at some stage there was a Guru Granth Sahib
in this Dera cannot thus lead to any conclusion that
this institutions was meant for, or belonged to, the
followers of the Sikh religion. Clearly, the Dera was
maintained for an entirely distinct sect known as the
Nirmala Sadhs who cannot be regarded as Sikhs and
consequently, in their mere capacity of followers of
Sikhs religion residing in village Jhandawala, the
plaintiffs/respondents could not be held to have such
an interest as could entitled hem to institute the suit
under s. 92 of the Code of Civil Procedure."
Shri Phadke appearing, for the respondent on the other
hand his cited Mahant Dharam Das etc. v. State of Punjab &
Ors (2). Dealing with the tenets of the Sikhs this Court
observed:
"The Sikhs believe in the ten Gurus-the last of
whom was Guru Gobind Singh. They further believe that
there is no other Guru after Guru Gobind Singh who
enjoined on his followers that after him they should
Consider Guru Granth Sahib as the Guru. They do not
subscribe to idol worship and polytheism, nor do they
have any Samadhi in their shrines. The teaching of
Sikhs was against asceticism. They believe in Guru
Granth Sahib, which is a Rosary of sacred poems,
exhortations, etc.
576
During the time of the Sikh Gurus the Gurdwaras were
under their direct supervision and control or under
their Masends or missionary agents. After the death of
Guru Gobind Singh the Panth is recognised as the
corporate representative of the Guru on earth and
thereafter they were managed by the Panth through their
Granthis and other sewadars who were under direct
supervision of the local Sangat or congregation-The
position of the Gurdwaras changed during British
regime. The mahants who were in charge of the Sikh
Gurdwaras could either be a Sikh Mahant or Udasi
Mahant....Though there was no reconciliation between
the Sikhs and Udasis, it did not matter if the Mahant
of a Sikh Gurdwara was not a Sikh Mahant because the
Panth or Sangat exercised control over the Gurdwaras".
Next reliance was placed o Sohan Das v. Bela Singh &
Ors.(2) Dealing with s. 16(2) of the Sikh Gurudwara Act the
Court observed:
"The documentary evidence therefore establishes
that the dharamsala has been a place of public worship
since 1853, and that such worship has been connected
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with the Granth Sahib I am prepared to accept the
evidence of the objectors that the existence of a
samadh dates only from recent times, more than probably
after the Sikh Gurdwara controversy had become acute
and he importance of a samadh had been realized by the
Udasi Mahants. I hold therefore that the evidence
supports the conclusion of the majority of the Tribunal
that this institution falls within s.16 (2) (iii) of
the Act".
In view of the divergent cases cited by the counsel for
the parties we have to take into consideration the
distinctive features of a Sikh Gurdwara as discussed in the
earlier part of the judgment. So viewed, the existence an
worship of Guru Granth Sahib and the existence of Nishan
Sahib are the determinative factor.
The Tribunal did not take into consideration the oral
evidence adduced by the parties. Eight witnesses were
produced on behalf of the appellant while six witnesses were
produced on behalf of the respondent. The High Court also
did not give a proper deal to the oral evidence adduced by
the appellant. The only consideration given by the High
Court to the oral testimony of the witnesses on behalf, of
the appellant was in the following terms:
577
"As regards the oral testimony on the point that
the institution was a Dera of an Udasi Sadhu, the same
is obviously interested, and hardly credible. The
Tribunal has not attached any weight to the same and we
are wholly in agreement with the finding of the
Tribunal on that point."
The witnesses on either side have come to depose on
oath. The grounds on which the evidence adduced on behalf of
the appellant has been discarded may equally apply to the
evidence adduced on behalf of the respondent. The Court
should have considered the worth of the evidence of each
witness and should have given reasons for disbelieving the
same on merit. A bald observation that the witnesses
produced on behalf of the appellate are interested must be
deprecated.
Even otherwise the courts below have not approached the
case from the correct angle. (The Courts had to decide the
question in view of the provisions of sub-s. (2) of s. 16 of
the Act and they had to record a positive finding in the
light of sub-s.(2) of s. 16,) which reads:
"16 (2) If the tribunal finds that the gurdwara-
(i) was established by, or in memory of any of the Ten
Sikh Gurus, or in commemoration of any incident in
the life of any of the Ten Sikh Gurus and was used
for public worship by Sikhs, before and at the
time of the presentation of the of the petition
under sub-section (1) of section 7; or
(ii) owing to some tradition connected with one of the
Ten Sikh Gurus, was used for public worship
predominantly by Sikhs, before and at the time of
the presentation of the petition under sub-section
(I) of section 7; or
(iii) was established for use by Sikhs for the purpose
of public worship and was used for such worship by
Sikhs, before and at the time of the presentation
of the petition under Sub-section (I) of section
7; or
(iv) was established in memory of a Sikh martyr, saint
or historical person and was used for public
worship by Sikhs, before and at the time of the
presentation of the petition under sub-section (I)
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of section 7; or
578
(v) owing to some incident connected with the Sikh
religion was used for public worship predominantly
by Sikhs, before and at the time of the
presentation of the petition under sub-section (I)
of section 7;
the tribunal shall decide that it should be declared to
be a Sikh Gurdwara, and record an order accordingly".
Unless the claim falls within one or the other of the
categories enumerated in sub-section (2) of s. 16, the
institution cannot be declared to be a Sikh Gurdwara.
The Court had, therefore, first to consider as pleaded
by the parties, as to whether Bhai Bhagtu was a Udasi saint
or a Sikh saint, and then to decide on the basis of evidence
whether the institution in question is one or the of the
types indicated. This was the only question for
consideration before the High Court but unfortunately it
assumed what was to be proved.
On the foregoing discussion we are satisfied that the
High Court has not given a proper deal to the matter and has
not considered the oral evidence adduced on behalf of the
parties. Nor has it approached case from the correct
perspective of law.
Ordinarily, in a situation as here the matter should
have gone back to the High Court for recordings findings on
the basis of appreciation of evidence but we are not
inclined to remand the matter as it is a very old dispute.
We are, therefore , prepared to take that burden ourselves
and finally decide the dispute. As would appear, parties
were aware of the nature claim and the evidence to be led
and, therefore, parties concentrated their attention on the
aspects which would be, decisive of the points in dispute.
It is unfortunate that the Tribunal and the High Court did
not Keep the proper perspective in view whiles dealing with
the matter.
On behalf of the appellant Ram Saran Dass, P W-1,
Charan Dass, PW 2, Bishan Dass, PW 3, Jagraj Singh, PW 4,
Chajju Ram, PW 5, Zora Singh Patwari, PW 6, Surjit Singh, PW
7 and the appellant, PW 8, were examined. On behalf of the
respondent, Hardev Singh, RW 1, Bachan Singh, RW 2, Balbir
Singh, RW 3, Balwant Singh, RW 4, Hazura Singh, RW 5, and
Gurdial Singh, RW 6, were examined as witness.
579
The finding of the High Court as extracted hereinbefore
clearly show that the four important and most relevant
aspects of the case as disclosed in the evidence were
completely overlooked or side tracked by the High Court,
They are: (i) there are Samadhs on the premises of the
institution ;(ii) there are idols and photos of Hindu
deities; (iii) Bhai Bhagtu was a Udasi Saint; and (iv)
succession was from Guru so Chela. The petition filed by the
appellant under s.8 of the Act contained a clear averment
that the institution had been set up by Bhai Bhagtu who was
a Udasi Saint and the presence of three Samadhs of (I) Bhai
Bhagtu, (2) Baba Paras Ram Ji and (3) Mahant Sahib Dass Ji,
was also asserted. In the written statement the respondent,
after a vague denial, had admitted the institution to have
been founded by Bhai Bhagtu.
PW 1, Ram Saran Dass stated that there was an idol of
Baba Srichand in the institution and there were pictures of
Lord Krishna and other Hindu deities. This statement was
elicited in cross-examination made by the respondent. PW 2
has stated that there is an idol of Baba Srichand and Gola
Sahib in the institution and they are objects of worship. PW
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3, Bishan Dass, referred to the idol of Baba Shrichand. PW
4, Jagral stated that there were three or four samadhs on
the premises of the institution and those are objects of
worship There was no challenge to this statement in
examination-in-chief by cross-examination. PW 5 was asked in
cross examination whether there were Samadhs on the premises
of the institution and his answer is revealing. He stated
that there are three Samadhs on the premises of the
institution and there is a dome over the Samadhs of Bhai
Bhagtu. He added that there are other pictures of Hindu
deities and Hindu Festivals are celebrated in the
institution. PW 7, Surjit Singh, the local Sarpanch stated
that the institution was of Udasi Fakirs. He also stated
that there is a Samadh of Bhai Bhagtu on the premises of the
institution and it is an object of worship. He indicated
that the Samadh of Bhai Bhagtu was worshipped in a grand
scale while the other two Samadhs were not treated on equal
basis. There was no cross-examination of this witness on
this aspect. Pritam Dass, the appellant did support his
case. Ordinarily his evidence would have been treated as
interested as he happens to be the party but his assertions
have well corroborated.
Coming to the respondent’s side, the first witness
Hardev Singh in his examination-in-chief stated that there
is a Samadh of Bhai Bhagtu in the institution and another
Samadh of his mother. On the basis of this admission of the
principal witness of the respondent there can be
580
on doubt that Samadhs exist within the institution. At the
hearing counsel had pointed out that this witness was a
member of the Communist Party. We do not think that would at
all be a proper way of appreciating the evidence of the
witnesses. He was a witness called by the respondent and was
not declared hostile, if he made admissions in his
examination-in-chief. On the other hand, the fact that he
does not belong to the groups of either party and is a
Communist would lend credence to his evidence as coming from
an impartial source. The next witness, RW 2, Bachan Singh
admitted the existence of the Samadhs but denied that the
Samadh of Bhai Bhagtu was an object of worship. RW 3, Balbir
Singh, admitted the presence of Samadh of Bhai Bhagtu as
also of his mother. It is in the evidence of this witness
that he also belongs to the Communist Party. What we have
said about RW 1 equally applies to this witness. RW 4,
Balwat Singh admitted the presence of Bhai Bhagtu’s Samadh;
while RW 5, Hazura Singh stated that there were two Samadhs
on the premises one of Bhai Bhagtu and the other of his
mother. The last witness, RW 6, Gurdial Singh in his
evidence admitted the existence of the two, Samadhs of Bhai
Bhagtu and his mother.
This analysis of the evidence clearly indicates that it
has been unquestionably established without the slightest
shadow of a doubt that there are at least two Samadhs on the
premises of the institution-one being of Bhai Bhagtu and the
other of his mother.
The existence of the idol of Baba Srichand, the founder
of the Udasi sect in the premises also seems to have been
fully established. As already stated, Sikhs would not permit
the idol of Baba Srichand in a Gurdwara, while Udasis would
ordinarily install such an idol to perpetuate the memory of
the founder of their sect.
What emerges from this discussion is that as found by
the Tribunal, the succession was from Guru to Chela; that
Bhai Bhagtu was a Udasi Saint and there are Samadhs on the
premises-one of Bhai Bhagtu and the other of his mother.
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Evidence shows that there are photos of Hindu deities in the
institution. These three facts, without anything more, would
be sufficient to reject the case of the respondent that the
institution is a Sikh Gurdwara. We would like to reiterate
that existence of Samadhs and succession from Guru to Chela
would clearly be destructive of character of the institution
as a Sikh Gurdwara because they are inconsistent with the
tenets of the Sikh
581
religion. The issue before the High Court as also the
Tribunal was whether the institution Dera Bhai Bhagtu was a
Sikh Gurdwara.
Reference to another aspect would be relevant here.
Counsel for the respondent emphasized the feature that there
was evidence to show that Guru Granth Sahib was recited and
read in this institution. It is well established that Udasis
are mid-way between Sikhs on the one hand and Hindus on the
other. Srichand, son of Guru Nanak, the founder of the
Sikhism, had, as already indicated, broken away and set up
the Udasi sect. Udasis while venerating Guru Granth Sahib,
retained Hindu practices and also showed their veneration to
the Samadhs. From the very fact that Guru Granth Sahib was
recited in this institution, no support can be drawn for the
claim that the institution was a Sikh Gurdwara.
On the materials on record, we are of the view that the
findings recorded by the Tribunal as also the High Court are
wholly unsupportable to satisfy the tests indicated in law
for determining the character of the institution. We allow
the appeal, reverse the decision of the Tribunal as upheld
by the High Court and declare that Dera Bhai Bhagtu is not
Sikh Gurdwara. In the circumstances of the case there would
be no order as to costs.
S.R. Appeal allowed.
582