MAHANT LACHHMAN DASS Vs. SHIROMANI GURDWARA PARBANDHAK COMMITTEE

JUDGEMENT

(1.) THIS First Appeal from Order was heard by a Division Bench consisting of P.C. Pandit J. (as he then was) and myself. On a difference of opinion between Pandit J. and myself, we directed that the case be placed before the Hon'ble Chief Justice for nominating a third Judge of this Court to hear and decide this appeal, vide our order dated May 31, 1973. This appeal was then listed before Hon'ble Chief Justice R.S. Narula on August 22, 1974. Shri Tehal Singh Mangat, the learned Counsel for the Appellant,, contended before the Hon'ble Chief Justice that the provision in Clause 26 of the Letters Patent for reference of points of difference between two Judges of a Division Bench to a third Judge is subject to any legislative provision to the contrary and in view of the mandatory provisions of Section 34 of the Sikh Gurdwaras Act, 1925 (hereinafter called the Act), about the requirement of an appeal under that provision being heard by a Bench of not less than two Judges it would not be legal for a Single Judge to deal with any aspect of such an appeal at any stage. The second objection regarding hearing and deciding the appeal by a third Judge was that there was no proper reference by the two Judges of the Division Bench in this case as the points on which the Judges are at variance have not been set out in their common order of reference. Thirdly, it was contended that one of the questions that may crop up in the appeal relates to the validity of the order under Section 8 of the Act and the question of vires of Section 8 of the Act, is under consideration in Civil Appeal Nos. 354/1222/1261 of 1969 in the Supreme Court. Those appeals were directed against Full Bench judgment of this Court reported in Maharit Lachhman Dass Chela Mahant Ishar Dass v. The State of Punjab and Ors., I.L.R. 1968 (2) P&H 499, upholding the vires of the Act. On these submissions having been made, the Hon'ble Chief Justice thought it proper that the appeal be set down for hearing before a Full Bench. It may be pointed out that the Supreme Court appeals referred to above have been dismissed and the decision is reported in Dharam Dass etc. v. The State of Punjab and Ors. : A.I.R. 1975 S.C. 1069. Therefore, this appeal has now been listed for hearing before a Full Bench.

(2.) AFTER hearing the learned Counsel for the parties, I am of the opinion that the view expressed by me in my earlier order is the correct view of the matter and the appeal is liable to be dismissed My earlier order may be read as part and parcel of this judgment and as such it would not be necessary for me to repeat the facts of this case and so also the various provisions of the Act. I am firmly of the opinion that the provisions of Order 9, Rule 8 and Order 17, Rules 2 and 3 of the Code of Civil Procedure, insofar as those relate to dismissal of causes in default, are not applicable to the proceedings before the Sikh Gurdwaras Tribunal (hereinafter referred to as the Tribunal) and hence in this regard the Tribunal is entitled to formulate its own procedure for the disposal of the matters arising out of the Act and pending before the Tribunal. It is to be noticed that Section 12(1) of the Act provides for the constitution of the Tribunal for the purposes of deciding claims made in accordance with the provisions of the Act. It cannot be denied that all petitions under Sections 5, 7, 8 and 10 of the Act are claims made in accordance with the provisions of the Act. Thus the Tribunal is constituted for deciding all the said claims. Sub -section (11) of Section 12 of the Act provides that the proceedings of the Tribunal shall so far as may be and subject to the provisions of the Act, be conducted in accordance with the provisions of the Code of Civil Procedure, 1908. The provisions of the Code of Civil Procedure have been made applicable insofar as may be and subject of the provisions of the Act. Any provision in the Code of Civil Procedure, which tends to frustrate the mandatory provisions of the Act, cannot be made applicable as is clear from the very language of this section. The contention that the Tribunal is bound to follow a procedure, which admittedly ousts the jurisdiction of the Tribunal for deciding the claims made in accordance with the provisions of the Act, is without merit. Furthermore, it is to be seen that under Section 14 of the Act, the State Government is enjoined upon to forward to the Tribunal all the petitions received by it under the provisions of Sections 5, 6, 8, 10 or 11 and the Tribunal is enjoined to dispose of such petitions by order in accordance with the provisions of the Act. It has been conceded before us by Shri T.S. Mangat, the learned Counsel for the Appellant, that in case his contention is accepted and if it is held that the provisions of Order 9, Rule 8 and Order 17, Rules 2 and 3 of the Code of Civil Procedure, are applicable, in that case, the Tribunal will have no jurisdiction to pronounce upon the claims made under Section 7 of the Act and also consequently claims made under Section 10 of the Act, when a petition under Section 8 made by a hereditary office -holder is dismissed for non -appearance in accordance with the provisions of the Code of Civil Procedure. In other words, he concedes that if a petition under Section 8 is dismissed for non -appearance, the jurisdiction of the Tribunal to adjudicate the question whether the institution in question is a Sikh Gurdwara or not and also regarding the claim made under Section 50 of the Act regarding the property, is ousted. Section 25 -A of the Act gives power to the Tribunal to pass a decree for the possession, if the Tribunal is satisfied that the claim relates to the right, title or interest in the immovable property, which has been held to be belonging to the Gurdwara or to the person in whose favour the declaration has been made. This provision was enacted to provide speedy machinery for implementing the orders of the Tribunal in a speedy and efficacious manner. A bare reading of the provisions of Sub -sections (1) and (11) of Section 12 and Section 14 read with Section 25 -A of the Act, would make it clear that the Tribunal has been constituted to decide finally all claims made in accordance with the provisions of the Act in a speedily manner with a view to reduce the chances of protracted litigation. This conclusion of mine finds support from the observations of their Lordships of the Supreme Court in Dharam Dass's case (supra). Their Lordships upheld the vires of Sections 3(4), 7(5) and other provisions of the Act by that judgment and after considering the provisions of the Act, the object for which the legislature enacted the Act, was summed up as follows:

(3.) REFERENCE may usefully be made to the Division Bench decision of this Court in Messrs Wood Workers and Packing Case Works Moga v. The State of Punjab and Ors., 1971 P.L.R. 125. The question which fell for consideration in that case was whether the Appellate Authority under the Punjab General Sales Tax Act was entitled to dismiss the appeal in default. It was held that the Appellate Tribunal could not dismiss the appeal in default and was enjoined upon by law to decide the appeal on merits. The provisions of Sub -section (6) of Section 20 of the Punjab General Sales Tax Act, 1948 and Rule 59(2) came up for consideration in that case. The Division Bench interpreted the provisions of Section 20(6) of the Act to be mandatory in terms and held that the appeal had to be decided on merits and the provisions of Sub -rule (2) of Rule 59 of the Punjab General Sales Tax Rules, 1949, which provided for giving power to the Tribunal for dismissing the appeal in default, were held to be ultra vires.