March 26.

476 SUPREME COURT REPORTS [1959] Supp.

BALKRISHNA SAVALRAM PUJARI

AND OTHERS

SHREE DNYANESHW AR MAHARAJ

SANSTHAN & OTHERS. (P. B. GAJENDRAGADKAR, A. K. SARKAR and K. SuBBA RAo, JJ.) Limitation-Suit for possession of Sansthan by hereditary worshippers on ouster by trustees-Period of limitation-Trustees, if in possession adversely to plaintiffs-Ouster, if a continuing wrong -Indian Limitation Act, I908 (9 of I908), Arts. I20, I24, s. 23.

The appellants who were the hereditary worshippers, called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to be its owners. The respondents as trustees of the said Sansthan dismissed eleven of the Guravs in 1911~ served a notice on the rest calling upon them to agree to act according to the orders of the Temple committee and appointed six Brahmins to carry on the services of the Sansthan. The Guravs did not agree and sued the respondents for a declaration of their rights of ownership and consequential reliefs. That litigation ended in the High Court in 1921 with the result that their claim of ownership stood rejected but their rights as hereditary worshippers were left open.

Thereafter 'the Gura vs took forcible possession of the temple on July 25, 1922. The trustees brought a suit under s. 9 of the Specific Relief Act on September 12, 1922, and obtained a decree on November 4, 1932. In execution of that decree the Guravs were dispossessed.

The suits, out of which the present appeals arise, were filed by the appellants against the trustees for declaration of their rights as hereditary servants of the Sansthan, a permanent jnjunction restraining the trustees from obstructing them in the exercise of the said rights and accounts.

The respondents claimed that the appellants were servants of the Temple committee and had no hereditary rights as claimed by them;· even if they had, their claim to such rights was barred by limitation. The trial Court decreed the suits. In appeal the High Court, while agreeing with the trial court on the merits, disagreed on the question of limitation, held the suits to be barred by limitation under art. 120 of the Limitation Act, the cause of action arising either on the filing of the s. 9 suit by the respondents or, in any event, on the date when the said suit was decreed, s. 23 of the Act having no application, and allowed the appeals. It was contended on behalf of the appellants in this Court that the suits were governed by art. 124 of the Limitation Act, and even if art. 120 applied, s. 23 saved limitation.

Held, that the High Court was right in holding that art. r20 an<:! not art. 124, of the Limitation Act applied and that s. 23 had no application to the suits in question.

Article 124 of the Limitation Act applies only where the 1959 cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the Balkrishna hereditary office in question. In such suits, the contest usually Sava/ram Pujari

is between rival claimants to the heniditary office and not & Others between such claimants and trustees. It is impossible to ignore v. the provision of Col. 3 to that article in deciding its applicabi- Shree Dnyaneshwar lit y.

Maha raj Sans than Kunj Bihari Prasadji v. Keshavlal Hiralal, [1904] I.L.R. 28 & Others Born. 567 and Jalim Singh Srimal v. Choonee Lall Johurry, [19II]

15 C.W.N. 882, held inapplicable.

Thathachariar v. Singarachariar, A.LR. 1928 Mad. 377, approved.

Annasami v. Advarachari, I.L.R. 1941 Mad. 275, distinguished.

Jhalandar Thakur v. ]harula Das, [1914] I.L.R. 42 Cal. 2444, referred to.

Section 23 of the Limitation Act refers not to a continuing right but to a continuing wrong. A continuing wrong is essentially one that creates a source of continuin~ injury as opposed to one that was complete and makes the doer liable for such continuance. A completed injury would not be a conti11uing wrong even though it might give rise to continuing damage.

Thus tested, the injury to the appellants resulting from the decree obtained by the trustees in the s. 9 suit, which amounted to a ouster, was complete at the date of the ouster and s. 23 of the Limitation Act could not apply so as to save limitation.

Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Saki Bahadur, [1939] I.L.R. 19 Pat. 208 and Khair Mohammad Khan v. Mst. Jannat, [1940] I.L.R. 22 Lah. 22, referred to.

Maharani Rajroop Kaer v. Syaed Abdul Hossein, [1880] L.R. 7 I.A. 240 and Hukum Chand v. Maharaj Bahadur Singh, [1933] L.R. 60 I.A. 313, distinguished and held inapplicable.

OrvIL

APPELLATE JURISDICTION: Civil Appeals Nos. 220 to 223 of 1953.

Appeals from the judgment and decrees dated April 14, 1943, of the Bombay High Court in Appeals Nos. 183, 184, 185 and 186 of 1942, arising out of the judg- . ments and decrees dated February 16, 1942, of the Court of the 1st Class Sub-Judge, Poona, in Suits Nos. 900/37, 392/35, 875/36 and 1202/33.

V. P. Rege and Naunit Lal, for the appellants.

N. C. Chatterjee, K. V. Joshi and Ganpat Rai, for respondents Nos. I to 6 (In all the Appeals).

'959

1959. March 26.

The Judgment of the Court was

Balkr; shna delivered by ·

Savalram Pujad GAJENDRAGADKAR, J.-These four appeals repre-

& Othm sent the last stage of a long and tortuous litigation v. between the appellants Waghmares (also called Sh"e Dnyaneshwar G ) h 1 th ht f h d "t h M h . s th uravs w o c aim e rig s o ere 1 ary wors 1pa ara; ans an , h Sh . e;. Othm pers m t e ree Dnyaneshwar MaharaJ Sansthan, Alandi, and respondents 1 to 6 who are the trustees Gajendragadkar }.of the said Sansthan.

Alandi, which is a small town situated on the banks of the river Indrayani at a distance of about 14 miles from Poona, is regarded aR a holy place of pilgrimage by thousands of Hindu devotees. In the last quarter of the 13th century Shree Dnyaneshwar Maharaj, the great Maharashtra Saint and Philosopher, lived at Alandi. He was a spiritual teacher and reformer ; by his saintly life and his inspiring and illuminating commentary on the Bhagvad Gita, known as Dnyaneshwari, he helped to create a popular urge and fervour for religious and social revolution which led to the foundation of a devotional cult; the followers of this cult are known as Warkaris in Maharashtra. They refuse to recognise any barriers of caste or class ; and amongst them prevails a feeling of real and genuine spiritual brotherhood. Every year, in the months of July and November, thousand~ of them proceed on pilgrimage on foot and accompany the annual palanquin procession from Alandi to Pandharpur. Pandharpur is the chief centre of pilgrimage in Maharashtra and it is regarded by devotees as the Banares of Southern India. About 1300 A. D.

Shree Dnyaneshwar Maharaj took Samadhi at Alandi and since then Alandi also has become a place of pilgrimage.

In or about 1500 A. D. a big temple was erected in front of the idol of Shiva called Siddeshwar where the said Shree Dnyaneshwar Maharaj took his Samadhi.

In due course the Mahratta Kings and the Peshwas of Poona granted the village of Alandi in inam for the upkeep of the temple and the Samadhi.

About 1760 A. D. Peshwa Balaji Baji Rao framed a budget called Beheda or Taleband in order to regulate the management and worship of the shrine and provided for proper

administration of its annual revenue amounting to z959 Rs. 1,725. The appellants claim that their ancestors l d Balktishna were then in possession of the temp e an manage- Sava/ram Pujari ment of its affairs especially the worship of the shrine. & others The budget framed by the Peshwa shows that out of v. the sum of Rs. 1,725 an amount of Rs. 361 was assign- Shree Dnyaneshwar ed to the worshippers for some of their services.

Maharaj Sansthan After the fall of the Mahratta power the manage- & Others ment of Alandi passed into the hands of the East Gajendragadkar 1.

India Company which continued the old arrangement without any interference. In 1852, under orders from the Government of Bombay the Collector of Poona drew up a yadi or memorandum appointing six persons as Punchas (trustees) with directions to them for the management of the temple in accordance with the old tradition and practice as well as for the administration of the revenue of the village subject to the control and sanction of the Collector. This arrangement came to be described as "the scheme of 1852".

In 1863 the Religious Endowment Act was passed, and in consequence, in 1864 the Government of Bombay withdrew their superintendence over the affairs of the Alandi Sansthan ; and the trustees continued to manage the affairs of the temple without any supervision on the part of the Government. It was during this period that the appellants' ancestors began to assert that they were the owners of the shrine while the trustees insisted on treating them as the servants of the shrine. This conflict inevitably led to several disputes between the worshippers and the trustees.

Matters appear to have come to a crisis in 1911 when the trustees dismissed eleven Guravs from the temple service on the ground that they were found guilty of gross misconduct. The Guravs nevertheless asserted that they were the owners of the shrine and that the trustees had no authority or power to dismiss them. Taking their stand on their ownership of the shrine some of the dismissed Guravs filed Civil Suit No. 485 of 1911 in the Court of the Subordinate Judge, Poona, against the trustees and this was the beginning of the long drawn out litigation which followed between the parties. In that suit the Guravs

'959 claimed a declaration that they were the owners of

Balkrishna the temple and not the servants of the temple com- Savalram Puja.i mittee; and as owners they were entitled to perform

& Others the worship at the shrine and to appropriate the offerv. ings made to the idol of the Saint. This claim was Sh"' Dyaneshwar resisted by the trustees who pleaded that the Gura vs Maha.a; hsansthan were merely the servants of the temple committee and

&Oters h II 0 . _ not t e owners at a . n April 20, 1917, the learned Gajendragadkar J. trial judge dismissed the suit because he held that the Gura vs were not the owners of the shrine and were not entitled to the declarations claimed by them.

Against this decision the Guravs preferred several appeals but these appeals were dismissed on August 3, 1921.

While dismissing their appeals the High Court incidentally expressed the view that it was open to the Gura vs to come to terms with the temple committee and that the terms on which the Guravs could be reinstated can be decided appropriately in a suit filed under s. 92 of the Code of Civil Procedure. It was also observed by the High Court in its judgment that the temple committee did not dispute the fact that the Guravs were the hereditary pujaris and that they had some rights in that capacity. No doubt the committee claimed that under the scheme framed in 1852 it was competent to dismiss hereditary servants for a substantial cause such as gross misconduct.

It appears that instead of adopting the course indicated in the judgment of the High Court and filing a suit under s. 92 of the Code, the Guravs chose to take the law into their own hands, and obtained forcible possession of the temple 'premises on July 25, 1922, and began to perform the puja and to take the offerings placed before the deity as they had been doing prior to their dismissal. This was followed by a suit filed by the trustees on September 12, 1922 (Suit No. 1075 of 1922) unders. 9 of the Specific Relief Act.

This suit terminated in a decree in favour of the committee on November 4, 1922. In pursuance of this decree the committee recovered possession of the temple on November 16, 1922. Thus the Gura vs had occupied the temple precincts for about three and a half months.

(2) S.C.R.

SUPREME COttR'r Rl!jPOR'rS 481

I959 When the Guravs were thus dispossessed by the committee in execution of the decree obtained by it, some of them proceeded to file Suit No. 19 of 1922 in Balkrishna the District Court of Poona; this suit purported to be Sava/ram Pujari one under s. 92 of the Code but it claimed the same & Others

relifs as ad been claimed by. the Gura vs in. thir Shree Dn; neshwar earlier smt of 1911. On April 25, 1927, the DistrwtMaharaj Sansthan Court dismissed this suit on the ground that the Gura- & Others vs could not reagitate the same questions over again. . - It was held that their claim was barred by the deci- Ga; endragadkar /. sion of the earlier Suit No. 485 of 1911. Against this decision the Gura vs appealed to the High Court (First Appeal No. 507 of 1927); but the High Court agreed with the conclusion of the District Court and dismissed the Guravs' appeal on June 20, 1933. It was held by the High Court that the suit as framed was not properly constituted under s. 92 of the Code.

It was at this stage that a properly constituted suit, No. 7 of 1934, was filed under s. 92 of the Code by the general public of Alandi along with two Gura vs in the District Court at Poona. This suit claimed that a proper scheme should be framed for the management of the temple. Even so, one of the allegations made in the plaint referred to the Guravs' rights as hereditary worshippers. It was apparently apprehended that this allegation would be treated as outside the scope of a scheme suit under s. 92 and so the Gura vs took the precaution of filing four separate suits on behalf of four branches in the W aghmare family one after the other. These suits were numbered as 1202 of 1933, 392 of 1935, 875 of 1936 and 900 of 1937; the plaintiffs in these suits were respectively the members of the third,. the fourth, the first and the second branch of the Waghmare family. It appears that the hearing of these suits were stayed by an order of the District Judge pending the final decision of the scheme suit which was being tried by him.

The scheme suit was taken up for hearing in 1937.

As many as 22 issues were framed in this suit and voluminous evidence was recorded. In the result the learned judge substantially confirmed the original

482 SUPREME COtJRT REPORTS [1959] Supp.

I959 scheme of 1852, though he issued certain directions . modifying it. This decree was passed on December Balkmhn•. . 11, 1937. The trustees felt aggrieved.by this decree Saualram PuJ•ri d h ll d . . b ,. . .,, Oth s an c a enge its propriety y pre1errmg an appeal, v." No. 92 of 1938, in the Bombay High Court. On Shree Dnyaneshwa. November 16, 1939, the High Court dismissed the Maharaj Sansthan appeal though it made some amendments in the sche-

& Others me framed by the District Judge by consent of the

Gajendrkar ]. parties. . .

After the scheme smt was thus disposed of by the High Court, the four suits filed by the pujaris were taken up for trial by the learned Subordinate Judge, First Class, Poona. In all these suits the appellants claimed their rights as hereditary vatandar Pujari Gurav Servants of the Sansthan. They alleged that they were under a duty to perform worship according to certain rites in Shree Dnyaneshwar. Sansthan and that they were also under an obligation to perform other incidental duties enumerated by them in .their plaints. Likewise they claimed that for remuneration they were entitled to receive coins and perishal;>le arti- . cles offered by the devotees and the committee as well as yearly emoluments from the committee. On these allegations the appellants claimed a declaration about their respective rights and an injunction permanently restraining the trustees from obstructing the appellants in the exercise of the said rights. They also claimed accounts from the trustees in regard to the offerings prior to the institution of the suit as well as those made after the institution of the suit and before the passing of the decree.

These allega.tions were denied by respondents I to 6.

Their case was that the appellants were the servants of the temple committee and as such had no hereditary rights set up by them. In the alternative, it was pleaded by them that even if the appellants had any hereditary rights the same had been lost by their misconduct and had been otherwise extinguished by limitation.

Against the appellants' claim pleas of res judicata and estoppel were also raised.

On these pleadings as many as 21 issues were framed in the trial court. The trial court found in favour

of the appellants on all the issues. The learned judge

I959 h.elhd that the Gburahvs hadd hestablised 1

. thde hetrekditahry Balkrishna rig ts set out y t em an e was me me to a e t e 5 1

P . . . . ava ram u; art view that the respondents could not deprive the appel- & others lants of their hereditary rights of service because of v. the misconduct of some of their ancestors. He also Shree Dnyaneshwr found that there was no substance in the plea of es- Maharaj Sansthan toppel or res judicata and that the suits were not bar- & Others red by limitation. In the result the appellants' suits Gajendragadkar 1. were decreed on February 16, 1942. • Thereupon the respondents challenged these decrees by preferring appeals against them in the Bombay High Court. The four suits accordingly gave rise to First Appeals Nos. 183, 184, 185 and 186 of 1942 respectively. In these appeals the High Court agreed with the trial court in holding that on the merits the appellants had established their case and that their claim was not barI'ed either by res judicata or by estoppel.

However, on the question of limitation the High Court took the view that the appellants' suits were governed by art. 120 of the Limitation Act and that they had been filed beyond the period of six years prescribed by the said article. That is why the High Court set aside the decrees passed by the trial court, allowed the respondents' appeals and dismissed the appellants' suits.

However, in view of the .special facts of the case the High Court directed that each party should bear its own costs throughout. This judgment was pronounced on April 14, 1943. Like the trial court the High Court also dealt with all the four cases by one common judgment.

It appears that after this judgment was pronounced by the High Court but before it was signed, the a ppellauts moved the High Court on July 2, 1943, for a rehearing of one of the appeals (No. 186 of 1942). It was urged before the High Court that even ii art. 120 applied the claim made by the appellant in the said appeal (which arose from Suit No. 1202 of 1933) could not be held to be barred by limitation. The High Court was not impressed by this plea and so the motion for rehearing was discharged.

Subsequently a Civil Application, No. 1039 of 1944,

'959 was made by the appellant in the said appeal seeking

8 lk . h to raise the same point over again but this applica-

Sava~•:'P~•d tion was rejected by the High Court on 'September 12,

& Others 1944. v.

The appellants then applied for leave to appeal to Shree Dyaneshwar the Privy Council on August 15, 1944. Their applica-

Mahar•J Sansthan tions were heard together and were disposed of by an

& Others d d M _ or er passe on arch 26, 1946, whereby leave was Gajendragadkar J. granted to them to appeal to the Privy Council and their prayer for consolidating all the appeals was also allowed. These appeals could not, however, be disposed of by the Privy Council before the jurisdiction of the Privy Council to deal with Indian appeals came to an end and so they ultimately came to this Court and were numbered as Appeals Nos. 220 to 223 of

1953. It may be convenient to state that these appeals arise respectively from Suits Nos. 907 of 1937, 392 of 1935, 875 of 1936 and 1202 of 1933. It would thus be seen that the litigation which began between the parties in 1911 has now reached its final stage before us in the present appeals.

As we have already indicated, both the courts below have found in favour of the appellants on most of the issues that arose in the present litigation ; but the appellants have failed in the High Court on the ground of limitation. In the trial court the respondents had urged that the present suits were governed by art. 124 of the Limitation Act and that since the Guravs had been dismissed from service in 1911 and other Guravs refused to serve in 1913 and 1914 limitatation began to run against them at least from 1914 and so the suits were beyond time. The learned trial judge held that art. 124 was inapplicable. He also found alternatively that, even if the said article applied, the trustees did not have continuous possession of the suit properties from 1911 or 1914 for twelve years and so the suits were not barred by time. According to him the case was really covered by s. 23 of the Limitation Act, and so the plea of limitation could not succeed.

The High Court has agreed with the trial court in holding that art, 124 is inapplicable. It has, however,

come to the conclusion that the suits are governz959 ed by art. 120 of the Limitation Act, and, according . to its findings, limitation began to run against the 5

B; lkrisna. . appellants either from September 12, 1922, when the ava;, a:'/iher~Jari trustees filed their suit under s. 9 of the Specific v.

Relief Act, or, in any case from November, 1922, Shree Dnyaneshwar when, in execution of the decree passed in the said Maharaj Sansthan suit, the appellants were driven out of the temple pre- &- Others cincts by the trustees. The High Court has also held Gajendragadkar 1 thats. 23 can have no application to the present case. That is how the High Court has reached the conclusion that the appellants' suits are barred by time under art. 120. The question which arises for our decision in the present appeals, therefore, is one of limitation ; it has to be considered in two aspects: Was the High Court right in holding that art. 120 applies and that the cause of action accrued more than six years before the dates of the institution of the present suits ? ; Was the High Court also right in holding that s. 23 does not apply to the suits?

On behalf of the appellants Mr. Rege has contended that in substance, in their present suits the appellants have made a claim for possession of an hereditary office and as such they would be governed by art. 124 of the Limitation Act. In this connection he has referred us to the relevant allegations in the plaint to show that the appellants' prayer for a declaration about their hereditary rights and for a consequential permanent injunction amount to no more and no less than a claim for possession of the said hereditary office.

In support of this argument reliance has been placed on the decision of the Bombay High Court in Kunj Bihari Prasadji v. Keshavlal Hiralal (1). In that case the plaintiff had made a claim to the gadi of the Swaminarayan temple at Ahmedabad and had asked for a declaration that the will of the last Acharya which purported to appoint defendant 14 as his adopted son and successor was null and void. As a consequence a perpetual injunction was also claimed restraining the defendants from offering any obstruction to the plaintiff in occupying the said gadi. The

(r) (1904) I.L.R. 28 Born. 567.

'959 principal point which was decided in the case had

Balktishna reference to the effect of the provisions of s. 42 of the Savalrnm p,.jari Specific Relief Act. The plaintiff's suit had been dis-

& Others missed in the courts below on the ground that he had v. omitted to ask' for further relief as he was bound to do Sluee Dnyaneshwar under s. 42 of the said Act and the High Court held Mahara; Sansthan th t th t' d'd t h d' . & Othm a e sec 10n 1 no empower t e court to rnm1ss the suit under the said section. In considering the Gajendrngadkar }.nature of the claim made by the plaintiff Jenkins, C. J., observed that " in the plaintiff's view the suit was not one of possession of land appertaining to the gadi but to determine who was to occupy the gadi and thus as gadinishin become the human agent of the deity. If that was so, then the in-junction restraining all interference with the occupancy by the plaintiff of the gadi secures in the most complete manner to him the rights he claims ". The learned Chief Justice also observed that "the plaintiff might in terms have asked for possession of the office he said was his", but he asked " how would practical effect be given to an award of possession of office otherwise than by preventing interference with the rights of which it was made up". Even so, having reversed the decree passed by the courts below, when the High Court remanded the case for retrial, the plaintiff was ad vised to amend his plaint and to define more precisely the terms of the injunction he sought. It is urged that, in the present appeals also, by asking for a declaration of their rights and for an appropriate injunction against the respondents, the appellants were in effect asking for possession of the hereditary office. It is doubtful if the claims made by the appellants in their respective suits are exactly analogous to the claim made by the plaintiff in Kunj Bihari Prasad's case (1).

The appellants have not only asked for an injunction but also for an account of the income received by the trustees from July 23, 1933, up to the date of the suit as well as for similar account from the date of the suit until the date of the decree. A claim for accounts in the form in which it is made may not be quite consistent with the appellants' contention that their suits are fo:i:. nothing more than possession

(1) (1904) I.L.R. 28 Born. 567.

(2) S.C.R.

SUPREME COURT REPORT~ 487

of the hereditary office ; but in dealing with the prex959 sent aJ?peals we are pepared to a_ssume that they Balkrishna have m substance claimed possess10n of the office. savalram Pujari The question which then arises is: Does this claim for 0 others possession attract the application of art. 124 of the v.

Limitation Act?

Skree Dnyaneshwar Article 124 governs suits for possession of an here- Maharaj Sansthan ditary office.

The period of limitation prescribed by & Others the article is twelve years and the said period begins Gajendragadkar J. to run when the defendant takes possession of the office adversely to the plaintiff. This is explained to mean that the hereditary office is possessed when the profits thereof are usually received or (if there are no profits) when the duties thereof are usually performed.

It is clear that b'efore this article can apply it must be shown that the suit makes claim for possession of an office which is hereditary; and the claim must be made against the defendant who has taken possession of the said hereditary "Office adversely to the plaintiff.

Unlike art. 142 the fact that the plaintiff is out of • possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period.

As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office.

The cause of action for possession in suits falling under art. 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.

In the present appeals the claim for possession is

488 SUPREME COtfR't' REl>OR't'S [1959] Supp.

1959 made by the appellants against the trustees of the

B lk . h Sansthan. It is significant that the persons who are Sava;,.:' ; ari actually performing the duties of the worshippers

& Others are not impleaded ; and they do not claim to hold v. office as hereditary officers either. They have been Shree Dyaneshwar appointed by the trustees as servants of the institution Maha;;10, i;,:sthan and they perform the duties of worship as such servants. The trustees, on the other hand, cannot be Gajendragadkar J. said to have taken possession of the office themselves adversely to the appellants. They do not take the profits themselves -Uor do they perform the duties associated with the said office. They have, in exercise of their authority and power as trustees, dismissed the appellants' predecessors from office and have made fresh appointments of servants to perform the worship at the Sansthan; and in making the said appointments, have in fact destroyed the hereditary character of the office. The dispute in the present appeals is between the worshippers who claim hereditary rights and the trustees of the institution who claim to have validly ' terminated the services of some of the predecessors of the appellants and to have made valid appointments to the said office. It is, therefore, impossible to accept the argument that the claim made by the appellants in their respective suits attracts the provisions of art.

124. It is conceded by Mr. Rege that if art. 124 does • not apply, the suits would be governed by art. 120 which is a residuary article. It may prima facie appear somewhat strange that whereas a suit against a person claiming to hold the hereditary office adversely to the plaihtiff is governed by a period of twelve years, a claim against the trustees like the respondents in the present appeals who have dismissed the hereditary worshippers should be governed by a period of six years. It may be possible to suggest that there is a substantial difference in the nature of the two disputes; but apart from it, it is well-known that the artificial provisions of limitation do not always satisfy the test of logic or equity.

Mr. Rege, however, argued that in determining the scope of art. 124 we need not consider the provisions of col. 3 to the said article. His contention appears

to be that once it is shown that the suit is for possesx959 shion o 1 f n hreditary oce, art.124 muhst appbly though Balkrishna• t e. c aim .ior possession may not ave . een made Sava/ram Pujari agamst a person who has taken possess10n of the & others office adversely to the plaintiff. He also urged alter- _ v. natively that the trustees should be deemed to haveShree Dnyaneshwar taken possession of the office adversely to the appel- Maharaj Sansthan lants.

We have already held that the conduct of the & Others trustees shows that they have not taken possession ofcajendragadkar J. the office adversely within the meaning of col. 3 of art. 124 ; and we do not think it is possible to ignore the provision of col. 3 in deciding whether or not art. 124 applies. It is true that in Jalim Singh Srimal v.

Ohoonee Lall J ohurry (1 ), while holding that the adjust- ment on which the plaintiff's claim was based in that case was in time both under arts. 115 and 120, Jenkins, C. J., has observed that the function of the third column of the second schedule is not to define causes of action but to fix the starting point from which the period of limitation is to be counted ; but this observation does not support the appellants' case that art. 124 would govern the suit even though the third column is wholly inapplicable to it. That obviously is not the effect of the observations made in Jalim Singh's case (1).

The question about the nature and scope of the provisions of art. 124 has been considered by the Madras High Court in Thathachariar v. Singarachariar (2). "If we take into consideration the terminology used in the three columns of art. 124 ", observed Srinivasa Aiyangar, J., in that case, "it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office

himself". In our opinion this view is correct.

We may also refer to another decision of the Madras High Court in which this question has been considered. In Annasami v. Adivarachari (3) a Full Bench of the Madras High Court was dealing with a suit in

(1) (19n) 15 C.W.N. 882.

(2) A.I.R. 1928 Mad. 377. .

(3) I.L.R. 1941 Mad. 27 5. 62

z959 which the plaintiff had claimed an injunction restrain-

Balkdshna ing the rustee and th~ archakas of th~ Sri B h u vara- Savalrnm Pujari baswam1 temple at Sr1mushnam from mterfering with

& Others the performance of the duties of his office of mantrav. pushpam of the temple.

This suit had been filed in Skree Dnyaneshwar 1929. The office of mantrapushpam was a hereditary

Mah";,, a~ 1 ;•nsthan office and the plaintiff had succeeded to it on the

"' death of his father iu 1906. The emoluments of the Gajendragadkar J. office consisted of a ball of cooked rice per diem and twelve annas per month. It appears that the plaintiff was a Vadagalai while the archakas of the temple were Thengalais and there was animosity between them ; and as a result of this animosity the plaintiff had never been able to perform the duties of his office.

It was common ground that the plaintiff was the lawful holder of the office and that he had been receiving its emoluments month by month until 1927. The archakas who resisted the plaintiff's claim did not claim that they were in possession of the office or that they had performed the duties of the said office.

The Full Bench held that, where a person is admittedly the lawful holder of the office and he is enjoying its emoluments, he must in law be regarded as being in possession of the office itself, especially where no one else is performing the duties of the said office ; and so under art. 124 it was enough for the plaintiff to show that he had been in receipt of the emoluments of the office to save his claim from the bar of limitation. The Full Bench also rejected the contention that under art. 120 the suit was barred because it was held that every time the trustee and the archakas prevented the plaintiff from performing his duties as a hereditary officer a fresh cause of action arose and so there can be no bar of limitation under art. 120. It would be noticed that the basis of this decision was that, in the eyes of law, the plaintiff was in possession of the hereditary office since he was receiving the emoluments of the said office month by month, and so every act of obstruction on the part of the archakas and the trustee was in the nature of a continuing wrong which gave rise to a fresh cause of action to the plaintiff from time to time.

In other words, on the facts the Full Bench held that

s. 23 helped the plaintiff and saved. his suit from the x959 bar of limitation. As we will presently point out there Balkrishna is no scope for applying s. 23 to the facts of the pre- Savalram Pujari sent cases, and so the decision in Annasami lyengar's & Others case (1) cannot assist the appellants. v.

In this connection it is relevant to consider the deci- Shree Dnyaneshwar f th p C "l Jh z d Th k Maharaj Sansthan swn o e nvy ounm in a an ar a ur v. & Others Jharula Das (2) in which it was held that art. 124 was inapplicable. The defendant Jharula Das had obtain- Gajendragadkar J. ed a decree for money on a mortgage which had been executed in his favour by Mst. Grihimoni, the widow of the shebait of the temple. In execution of the said decree the defendant had caused 3t as. share of the judgment-debtor including her right in the nett income of the daily offerings made before the idol to be put up for sale and had himself purchased it at the auction sale.

As such purchaser he was in possession of the income of the said share.

The judgment-debtor attempted to challenge the said sale by two suits but her attempts failed and the auction purchaser continued to be in possession of the income. On the death of Mst. Grihimoni, Bhaiaji Thakur, who succeeded to the office of the she bait, sued the defendant for possession of certain lands and claimed a declaration that he was entitled to receive the 3tas. share of the nett income from the offerings to the temple with other reliefs.

This claim was resisted by the defendant Jharula Das. In regard to the plaintiff's claim in respect of the said 3tas. share, the High Court had held that art. 124 applied and that the claim was barred under the said article. That is why the decree passed by the trial court in favour of the plaintiff in respect of the said income was reversed by the High Court. This decision was challenged by the plaintiff before the Privy Council and it was urged on his behalf that art. 124 did not apply. The Privy Council upheld this contention. It was clear that the office of the shebait of the temple was a hereditary office which could not be held by anyone who was not a Brahmin Panda. Jharula Das was not a Brahmin Panda. He was of an inferior caste and was not

(r) l.L.R. r94r Mad. 275.

(2) (1914) I.L.R. 42 Cal. 244.

x959 competent to hold the office of the shebait of the temple, or to provide for the performance of the duties Balakrishna of that office.

On these facts the Privy Council held Savalram Pujari h f & Others t at the appropriation rom time to time by Jharula v.

Das of the income derivable from the said 3ias. share Shree Dnyaneshwar did not deprive Mst. Grihimoni, and after her death, Maharaj Sansthan Bhaiaji Thakur, of the possession of the office of the

& Othm shebait although that income was receivable by them

G . d-dk 1 in right of the shebaitship. The basis of this decision a; en raga ar . • h . h' Jh 1s that, on eac occas10n on w 10h arula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled, he committed a fresh actionable wrong in respect of which a suit could be brought against him by the she bait; but it did not constitute him a shebait for the time being or affect in any way the title of the office. Thus this decision emphasises that for the application of art. 124 it is essential that the defendant to the suit must be in adverse possession of the hereditary office in question.

We must, therefore, hold that art. 124 does not apply to the suits filed by the appellants; and as we have already observed, if art. 124 does not apply, art. 120 does.

The next point which arises for our decision is whether under art. 120 the suits are barred by limitation.

Under art. 120 time begins to run against the • plaintiffs when the right to sue accrued to them, and that naturally poses the question as to when the right to sue accrued to the appellants. In deciding this question it would be necessary to recall briefly the material facts in regard to the past disputes between the appellants and the trustees. These disputes began in 1911. On January 31, 1911, the trustees wrote a yadi (memorandum) to the Collector of Poona asking his permission to dismiss eleven Guravs from service.

They set out in detail several items of misconduct of which the said Gura vs were guilty; and they expressed their opinion that for the proper management of the affairs of the institution it was necessary to terminate the services of the offending Gura vs (Ex. 407). On

April 1, 1911, the Collector sent a reply to the trustees and told them that, as a result of the Government

Resolution No. 4712 passed on November 29, 1864, z959 it was unnecessary for the trustees to obtain the Balkrishna Collector's sanction because it was competent to the savalram Pujari trustees to settle their own affairs without any such &- others sanction. The trustees then met in a committee on v.

September 18, 1911, and decided to dismiss from ser- Skree Dyaneshwar vice the said eleven Gura vs. In its resolution the Maha;'~ :ansthan committee stated that the Guravs were violent and

ers arrogant and it was likely that they may commit riot Gajendragadkar J. at the time when the committee would .seek to take charge from them. The committee also apprehended that the rest of the Guravs would make a common cause with those who had been dismissed from service and would refuse to serve the Sansthan. Even so the committee decided to appoint.six Brahmins temporarily to perform the service, because the committee was prepared to allow the rest of the Guravs to render service to the Sansthan if they were ready to act according to the orders of the committee and were willing to enter into a formal agreement in that behalf.

In accordance with this resolution the committee served notice on the eleven Guravs on October 13, 1911, terminating their services and calling upon them to hand over to the committee all articles in their charge and forbidding them from entering the temple in their capacity as servants. Notice was likewise served on the rest of the Gura vs calling upon them to agree to serve the Sansthan on conditions specified in the notice. These terms were not acceptable to the Gura vs and so, on behalf of two Guravs Eknath and his brother Ramachandra, notice was served on the trustees on October 26, 1911, complaining against the trustees' conduct in forcibly removing the Guravs from the temple and thereby wrongfully denying their rights. The notice warned the trustees that unless they retraced their steps and gave possession to the Guravs as claimed in the notice legal steps would be taken against them.

This notice was followed by the Guravs' Suit No. 485 of 1911. In the suit the plaintiffs claimed declaration about their rights of ownership and asked for consequential reliefs. This claim was denied by the

' 959 trustees who claimed the right to dismiss the Guravs.

Balkrishna It was alleged on their behalf that some of the plain- Savafram Pujad tiffs had been dismissed and others had resigned their

& Othm employments and so all of them had lost their rights. v.

This suit was seriously contested but in the end the

SMhr~' Dya5 neshwh"'Guravs lost and their suit was dismissed on January ••lllMJ anst an 31 1918 & Others ' _ The Guravs then preferred appeals in the High Gaj, ndragadkar J. Court but these appeals were also dismissed on August 3, 1921.

We have already pointed out that, while dismissing the said appeals, the High Court made certain observations about the Guravs' hereditary rights of worship and suggested that these rights could be adjudicated upon in a suit filed under s. 92 of the Code. Thus at the time when the Guravs' appeals were dismissed the position was that the claim of ownership set up by them had been rejected; but the question as to whether they were entitled to the lesser rights of hereditary worshippers was left open.

The Gura vs then obtained forcible possession of the temple and that led to the trustees' suit under s. 9 of the Specific Relief Act, No. 1075 of 1922, on September 12, 1922. In this suit the trustees specifically alleged that the relationship of the defendants as servants of the Sansthan had ceased as from September, 1911, and they averred that the defendants had therefore no right to obtain possession of the temple. The defendants no doubt disputed this claim and pleaded that they were the hereditary vatandar pujari servants but their .claim was negatived and a decree for possession was passed on November 4, 1922. In execution of this decree the defendants were dispossessed.

On these facts the High Court has held in favour of the appellants, and rightly we think, that it was difficult to accept the respondents' contention that the cause of action for the present suits which were expressly based upon the status of the Gura vs as hereditary servants arose in 1911.

But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12, 1922, when the trustees filed their suit under s. 9 of the Specific Relief Act or in any event on November 4,

1922, when the said suit was decreed and the Guravs x959 were consequently dispossessed. In our opinion this B lk . h conclusion is also right. One of the Guravs who was Saval:a;;:P:ari examined in the present litigation has stated that, "if & Others in any year when it is the turn of any takshim to v. serve, if a person outside the Gurav family is appoint- Shree Dnyneshwar ed by the trustees, all the takshims have a right to Mahara1 ansthan object".

There is also no dispute that since the dis- & Others missal of eleven Guravs in 1911 till the institution ofoajendragadkar J. the present suits none from the Gurav family has served the temple except for 3t months in 1922 when the Gura vs had wrongfully obtained possession of the temple. In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners. This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Gura vs in their written statement; and the decree that followed upheld the trustees' case and rejected the defendant's claim. On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4, 1922, when a decree was passed under s. 9 of the Specific Relief Act.

If not the plaint in the suit, at least the decree that followed clearly and effectively threatened the Gura vs' rights as hereditary worshippers and so the cause of action to sue on the strength of tl; ie said rights clearly and unambiguously arose at that time. If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under art. 120.

It is then contended by Mr. Rege that the suits cannot be held to be barred under art. 120 because s. 23 of the Limitation Act applies; and since, in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment of time during which the said wrong continued; Does the conduct of the trustees amount to a continuing wrong under s. 23 ? That is the question which this contention raises for our decision. In other words, did the

z959 cause of action arise de die in diem as claimed by the

B lk . h appellants? In dealing with this argument it is necesa ris na tb 'di 23" Savalram Pujari sary o ear m mm t iat s. re1ers not to a continu-

& OJhers ing right but to a continuing wrong. It is the very v. essence of a continuing wrong that it is an act which Shree D1yaneshwar creates a continuing source of injury and renders the Mahara; Sansthan doer of the act responsible and liable for the continu-

& Others ance of the said injury. If the wrongful act causes an

Gajendragadkar J. injury which. is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s. 23 can be invoked. Thus considered it is difficult to hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong.

The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance 'of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment ? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of s. 23 in such a case. That is

the view which the High Court has taken and we see z959 no reason to differ from it. h W ld l'k .c t f h d . .

Balkris na e wou now 1 e to re1er o some o t e ec1s10ns Savalram Pujari which were cited before us on this point.

The first & Others case which is usually considered in dealing with the v. application of s. 23 is the decision of the Privy Council Shree Dnyaneshwar in Maharani Rajroop Kaer v. Syed Abdul Hossein (')Maharaj Sansthan I d h' d · · t & Others n or er to appreciate t is ec1s10n it IS necessary o _ refer, though briefly, to the material facts.

The Gajenrlragadkar J. plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water fl.owing through it except that which fl.owed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Mora had used the water-for the purpose of irrigating their own land. It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstructions except two which were numbered No. 3 and No. 10.

No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm trees so placed as to draw off water in the pyne for the purpose of irrigating the defendants' lands. It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the fl.ow of water to the plaintiff's mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. That is why the Privy Oouncil allowed the plaintiff's claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf. In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiff's water and thereby committing fresh wrong every time.

Thus this is clearly not a case of exclus10n or ouster.

(r) (1880) L.R.'7 I.A. 240. 63

'959 Similarly, in Hukum Chand v. Maharaj Bahadur Singh (1 ) the Privy Council was dealing with a case Balkrishna Savafram Pujad where the defendants' act clearly amounted to a con-

& others tinuing wrong and helped the plaintiff in getting the v. benefit of s. 23.

The relevant dispute in that case Sh"e Dnyaneshwar arose because alterations had been made by the Maharaj Sansthan Swetambaris in the character of the charans in

& Othm h d th D" b 1 d h t _ certam s rmes an e igam ans comp ame t a Gajend.agadkar J. the said alterations amounted to an interference with

. their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. "The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models orphotographs which shows toe nails and must be taken to be a representation of part of the foot.

This the Digambaris refused to worship as being a representation of a detached part of the human body". The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong of which the Digambaris were entitled to complain. The question which the Privy Council had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not ; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (') and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem.

In our opinion, neither of these two decisions can be of any assistance to the appellants.

On the other hand the decision of the Patna High Court in Choudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Saki Bahadur(')

(1) (1933) L.R. 60 I.A. 313.

(2) (1880) L.R. 7 I.A. 240.

(3) (1939] l.L.R. 19 Pat. 208.

as well as that of the Full Bench of the Punjab High '959 Court in Khair Mohammad Khan v. M st. J annat (1) 8 lk . h h d , , h h h a ris na support t e respon ents content10n t at w ere t e savalram Pujari

impugned act amounts to ouster there is no scope for & others the application of s. 23 of the Limitation Act.

We v. are therefore satisfied that there is no substance in Shree Dnyaneshwar ' ' M h

. S th the appellants' contention that s. 23 helps to save' a ara; ans an I. 't t' .!.' h · &- Others im1 a ion 1or t e1r smts.

The result no doubt is unfortunate. The appellantscajendragadkar J. have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed. In the result the appeals fail and are dismissed. We would, however, direct that the parties should bear their own costs throughout.

Appeals dismissed.

SARDAR SARUP SINGH & OTHERS

THE STATE OF PUNJAB & OTHERS

(S. R. DAS, c. J., N. H. BHAGWA'L'I, s. K. DAS, P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Fundamental rights, violation of-Sikh Gurdwaras-Election of Gurdwara Board-Statutory provision therefor, when affects religion-Direct election by entire Sikh Community, if essential-

" Matters of religion," Meaning of-Sikh Gurdwaras Act, r925 (Punjab 8 of r925), as amended by Punjab Act I of r959, ss. 43, 43A, r48B-Constitution of India, Art. 26(b}, (d).

In 1925 the Sikh Gurdwaras Act, 1925, was passed, inter alia, for the better administration of certain Sikh Gurdwaras, and after the merger of the erstwhile State of Patiala and the East Punjab States Union, called Pepsu, with the State of Punjab, the Act was amended by the Sikh Gurdwaras (Amendment) Act, 1959, in order to extend the Act to the area which was formerly within Pepsu. Under s. 43 of the Act, before it was amended in 1959, a Board had been constituted, called the Sikh

(1) (1940) I.L.R. 22 Lah. 22,

'959

April I.

BALKRISHNA SAVALRAM PUJARI

AND OTHERS

SHREE DNYANESHWAR MAHARAJ SANSTHAN & OTHERS

A. K. SARKAR

K. SuBBA RAo, JJ.

Indian Limitation Act

s. 23

s. 9

Specific Relief Act

art. 120

Limitation Act

s. 9

s. 23

art. 124

Limitation Act

art. 120

s. 23

art. 124

Limitation Act

s. 23

Article 124

Limitation Act

Section 23

Limitation Act

s. 9

s. 23

Limitation Act

L.R. 7 I.A. 240

L.R. 60 I.A. 313

s. 92

the Code of Civil Procedure

s. 92

Specific Relief Act

s. 92

s. 92

s. 92

s. 92

art. 120

Limitation Act

art. 120

art. 124

Limitation Act

art. 124

s. 23

Limitation Act

art. 120

Limitation Act

s. 9

art. 120

art. 120

s. 23

art. 124

Limitation Act

s. 42

Specific Relief Act

s. 42

sec 10

art. 124

Limitation Act

Article 124

art. 142

art. 124

art.

124

art. 124

art. 120

art. 124

art. 124

art. 124

arts. 115 and 120

art. 124

art. 124

art. 124

art. 124

art. 120

art. 120

s. 23

s. 23

art. 124

art. 124

art. 124

art. 124

art. 124

art. 124

art. 120

art. 120

art. 120

s. 92

s. 9

Specific Relief Act

s. 9

Specific Relief Act

s. 9

Specific Relief Act

art. 120

art. 120

s. 23

Limitation Act

s. 23

s. 23

s. 23

s. 23

s. 23

(1933) L.R. 60 I.A. 313

(1880) L.R. 7 I.A. 240

s. 23

Limitation Act

s. 23

Meaning of-Sikh Gurdwaras Act

ss. 43, 43A

Constitution of India

Art. 26(b}, (d)

Sikh Gurdwaras Act, 1925

s. 43


(2) S.C.R. SUPREME COURT REPORTS 499

as well as that of the Full Bench of the Punjab High '959 Court in Khair Mohammad Khan v. M st. J annat (1) 8 lk . h h d , , h h h a ris na support t e respon ents content10n t at w ere t e savalram Pujari

impugned act amounts to ouster there is no scope for & others the application of s. 23 of the Limitation Act.

We v. are therefore satisfied that there is no substance in Shree Dnyaneshwar ' ' M h

. S th the appellants' contention that s. 23 helps to save' a ara; ans an I. 't t' .!.' h · &- Others im1 a ion 1or t e1r smts.

The result no doubt is unfortunate. The appellantscajendragadkar J. have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time. In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed. In the result the appeals fail and are dismissed. We would, however, direct that the parties should bear their own costs throughout.

Appeals dismissed.

SARDAR SARUP SINGH & OTHERS

THE STATE OF PUNJAB & OTHERS

(S. R. DAS, c. J., N. H. BHAGWA'L'I, s. K. DAS, P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Fundamental rights, violation of-Sikh Gurdwaras-Election of Gurdwara Board-Statutory provision therefor, when affects religion-Direct election by entire Sikh Community, if essential-

" Matters of religion," Meaning of-Sikh Gurdwaras Act, r925 (Punjab 8 of r925), as amended by Punjab Act I of r959, ss. 43, 43A, r48B-Constitution of India, Art. 26(b}, (d).

In 1925 the Sikh Gurdwaras Act, 1925, was passed, inter alia, for the better administration of certain Sikh Gurdwaras, and after the merger of the erstwhile State of Patiala and the East Punjab States Union, called Pepsu, with the State of Punjab, the Act was amended by the Sikh Gurdwaras (Amendment) Act, 1959, in order to extend the Act to the area which was formerly within Pepsu. Under s. 43 of the Act, before it was amended in 1959, a Board had been constituted, called the Sikh

(1) (1940) I.L.R. 22 Lah. 22,

'959

April I.

1959 Gurdwara Prabandhak Committee, to act as the committee of management in respect of some of the principal Sikh Gurd- Sardar \Varas and in addition to exercise control, direction and general Sarup Singh superintendence over all committees appointed under the prov. visions of the Act; the Board consisted of three categories of State of Punjab members, namely (1) elected members, (2) certain designated members, and (3) co-opted members, which included persons residing in Pepsu and other parts of India.

By the Amending Act of 1959. s. r48B was added to the main Act, which provided : " (r) As from the commencement of the Amending Act, in addition to the members of the Board constituted under s. 43 ......... (a) every person in the extended territories who, immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government ......... shall be deemed to be a member of the Board, constituted under s. 43 ; and (b) thirty-five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories ......... who shall ......... be elected by the persons specified in sub-s. (2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board ............ ".

The petitioners who profess and practice the Sikh faith filed a petition under Art. 32 of the Constitution challenging the constitutional validity of s. r48B on the ground that the section violated the fundamental right granted under Art. 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomination "to manage its own affairs in matters of religion". They contended, inter alia, (1) that the amending Act of 1959 was passed with a view that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held; (2) that the members of the Interim Board, Patiala, who under s. 148B(1)(a) are deemed to be members of the Board constituted under s. 43, were appointed under a Punjab Government notification, and being merely nominees of Government did not represent the Sikh Community; that under s. 148B thirty-five Sikhs from the extended area were introduced into the Board by means of an indirect method, that is, by a limited Sikh electorate, the members of which electorate were in their turn elected by Sikhs as well as non-Sikhs; that the right guaranteed under Art. 26(b) was given to all members of the Sikh denomination to manage Sikh Gurdwaras, that the right must be exercised by all Sikhs who alone must elect their representatives and that the introduction of new members into the Board in respect of the extended territories in the manner envisaged by s. 148B, violated by itself the right of the Sikhs in a matter of religion and constituted an infringement of their fundamental right under Art. 26(b).

Held: (1) that in considering the question as to whether a

provision of law is constitutionally valid, the court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make ;

(z) that a direct election by the entire Sikh Community in the management of Gurdwaras is not part of the Sikh religion; and,

(3) that the method of representation for the extended areas under s. 148B of the Act was an arrangement dictated merely by considerations of convenience and expediency, and did not involve any principle of religion.

Accordingly, s. 148B of the Act did not affect "maters. of religion" within the meaning of Art. z6(b) of the Const1tut10n and consequently did not contravene the fundamental right under that Article.

The Commissioner, Hindu. Religious Endowments, Madras v.

Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954) S.C.R. l005 and Sri Venkataramana Devaru v. The State of Mysore, [1958] S.C.R. 895, referred to.

ORIGINAL JURISDICTION: Petition No. 13 of 1959.

Petit.ion under Article 32 of the Constitution of India for enforcement of .B'undamental Rights.

Harnam Singh and Sadhu Singh, for the petitioners.

S. M. Silcri, Advocate-General for the State of Punjab, Gopal Singh and D. Gupta, for respondent No. I. 1959.

April 1.

The Judgment of the Court was delivered by

L959

Sardar Sarup Singh

v, State of Punjab

S. K. D.As, J.-This is a petition under Art. 32 of s. K. Das J. the Constitution in which the petitioners challenge the constitutional validity of s. 148-B of the Sikh Gurdwara8 Act, 1925 (Punjab VIII of 1925), hereinafter called the principal Act, the said section having been added to the principal Act by the Sikh Gurdwaras (Amendment) Act, 1959, hereinafter called the amending Act of 1959.

The petitioners profess and practice the Sikh faith and they allege that, they are interested in the maintenance and management of Sikh Gurdwaras, scheduled and notified under the principal Act.

Their main contention i8 that s. 148-B violates the fundamental right granted under Art. 26(b) of the Constitution to every religious denomination or any section thereof including the Sikh denomintion, " to,

Sarda, Sarup Singh v.

State of Punjab

S. ](. Das J.

manage its own affairs in matters of religion". The respondents to the petition are, firstly, the State of Punjab and, secondly, President and twelve members of the Interim Gurdwara Board, Patiala, who under

cl. (a) of sub-s. (1) of s. 148-B shall be deemed to be members of the Board constituted under s. 43 of the principal Act. That Board is now known by the name of the Sikh Gurdwara Prabandhak Committee.

The application has been contested before us by respondent No. I only, namely, the State of Punjab, on the ground thats. 148-B does not, in any way, violate the fundamental right granted to the petitioners or other members of the Sikh denomination under Art. 26(b) of the Constitution. Therefore, the only question for consideration before us is ifs. 148-B of the principal Act does or does not contravene the fundamental right granted to the Sikhs under Art. 26(b) of the Constitution.

We shall presently set out the provisions of s. 148-B and also of some other relevant sections of the principal Act. But before we do that, it is necessary to state a few facts with regard to the passing of the amending Act of 1959. It has been stated before us that in or about the year 1919 there was considerable unrest amongst the Sikhs in the Punjab in respect of the management of their gurdwaras and shrines, and in 1922 an Act called the Sikh Gurdwaras and Shrines Act was passed ; this did not satisfy the Sikhs and in 1925 the principal Act was passed, as its preamble states, "for the better administration of certain Sikh gurdwaras and for enquiries into matters and settle-. ment of disputes connected therewith". The principal Act was amended from time to time. On November 1, 1956, there was merger of the erstwhile State of Patiala and the East Punjab States Union (hereafter called Pepsu in brief) with the State of Punjab. Sometime in February 1957 the Government of the State of Punjab appointed an advisory committee to report as to whether the principal Act should be extended to the area which was formerly within Pepsu. In September 1957 the committee recommended in favour of such extension.

On April 8, 1958, a bill called the Sikh

Gurdwaras (Amendment) Bill, 1958, was introduced in the Punjab Vidhan Sabha and the Bill was sent to the regional committees constituted by an order of the President called the Punjab Regional Committees Order, 1957, made under cl. (1) of Art. 371 of the Constitution. The regional committees dealt with the Bill i:i.nd made certain recommendations. For the purposes of the application before us, it is unnecessary to go into details of the proceedings before the regional committees. Sometime in November 1958 there was

a meeting of the Sikh Gurdwara Prabandhak Committee for the purpose of the annual election. Learned counsel for the petitioners has stated before us that at this meeting there was a majority by a very small margin (three votes only) in favour of a particular group of Sikhs and against another group known as the "Shiromoni Akali Dal".

Within one week, however, a notice was given for .calling a meeting to' consider the provisions of the amending Bill ; this meeting could not, however, be held as an order of stay was obtained from the Judicial Commission constituted under the principal Act. In December 1958 a special session of the Vidhan Sabha was summoned to consider the amending Bill. It has been stated tbat originally the amending Bill did not contain provisions like those later embodied ins. 148-B. The Bill was accordingly sent back to the regional committees and on December 27, 1958, the regional committees . submitted a final report and recommended the addition of provisions which subsequently became the provisions of s. 148-B of the principal Act. It may be here stated that even in the regional committees there was some opposition to the provisions in question. On December 31, 1958, the Bill was passed by the Vidhan Sabha and on January 3, 1959, it was passed by the Legislative Council. On January 8, 1959, it received the assent of the Governor and became Punjab Act No. I of 1959, which is the Amending Act of 1959. It came into force at once and some rules under the Act were made a few days after. On February 2, 1959, the present petition was filed and on February 14, 1959, the election of 35 Sikhs contemplated under

cl. (b) of sub-s. (1) of s. 148-B was completed.

I959

Sardr Sarup Singh v.

State of Punjab

S. K. Das].

I959

Sard'1r Sarup Singh v.

State of Punjab

S. K. Das].

504 SUPRE:r.m COURT REPORTS [1959] Supp.

It is necessary at this stage to refer to some of the old provisions of the principal Act as also the new provisions added by the amending Act of 1959.

The Board which is known as the Sikh Gurdwara Prabandhak Committee acts as the committee of management in respect of some of the principal Sikh gurdwaras; in addition, it also has the duty of en.1mring that every committee of management deals with the property and income of the gurdwara or gurdwaras managed by it in accordance with the provisions of the Act and for the fulfilment of this duty it exercises control, direction and general superintendence over all committees appointed under the provisions of the principal Act (see s. 125).

The Board is constituted under s. 43 of the principal Act. Previous to the passing of Punjab Act No. 44 of 1953, s. 43 said that the Board shall consist of (i) 84 elected members, (ii) the head ministers of certain well-known Sikh gurdwaras, (iii) 12 members nominated by the Rajpramukh of Pepsu and (iv) 17 members resident in India of whom not more than four shall be residents in Punjab, co-opted by the members of the Board as described in (i), (ii) and (iii) above. In 1953 was passed Punjab Act No. 44 of 1953 ands. 43 of the principal Act was amended.

The amended section was m these terms:-

" S. 43. (1) The Board shall consist of-

(i) one hundred and thirty-two elected members;

(ii) the head ministers of the Darbar Sahib, Amritsar, and, the following four Takhts, namely,- the Sri Akali Takht Sahib, Amritsar, the Sri Takht Kesgarh Sahib, Anandpur, the Sri Takht Patna Sahib, Patna, and the Sri Takht Nazur Sahib, Hyderabad- Deccan; and

(iii) twenty-five members resident in India of whom at least twelve shall be residents of Pepsu, at least nine of other parts of India than Punjab and Pepsu and not more than four of Punjab, co-opted by the members of the Board as described in clauses (i) and (ii).

(2) ............ ,, It would thus appear that after the passing of Punjab

(2) s.c.R.

StJPR~M:E COUR1:1 R:EPORTS t505

Act No. 44 of 1953 the Board consisted of only three categories of members, namely, (1) elected members,

(2) certain designated members and (3) 25 co-opted members. Now, we come to s. 148-B which was added by the amending Act of 1959. That section in so far as it is material for our purpose is in these terms :-

" S. 148-B. (1) As from the commencement of the Amending Act, in addition to the members of the Board constituted under section 43 and till the next election of the new Board under section 43-A-

(a) every person i.n the extended territories who, immediately before the commencement of the Amending Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government, Home Department, Notification No. 18-Gurdwaras, dated the 10th January, 1958, shall be deemed to be a member of the Board, constituted under section 43; and

(b) thirty-five Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended territories, to be divided among different districts thereof in proportion to the Sikh population of each district in the prescribed manner, who shall, within forty days of the commencement of the Amending Act, be elected by the persons specified in subsection (2) in accordance with the rules made in this behalf by the State Government, shall become the members of the Board from the date specified in subsection (3).

(2) The thirty-five persons referred to in clause (b) of sub-section (1) shall be elected by-

(i) the persons who are deemed to be the members of the Board under clause (a) of sub-section (1);

(ii) the twelve members of the Board being residents of Pepsu as are referred to in clause (iii) of sub-section (1) of section 43;

(iii) the sitting Sikh members of Parliament and the two Houses of State Legislature returned from any constituency or part thereof from the extended territories ;

(iv) the Sikh members of Municipal Committees in the extended territories ;

I959

Sardar Sarup Singh v.

State of Punjab

S. K. Das].

Sardar Sarup Singh v.

State of P11njab

S. K. Das},

(v) the Presidents or Chairmen of such Singh Sabhas and the Managers or Secretaries of such Sikh educational institutions or Sikh religious organisations as are registered on or before the l st Dec em her, 1958, in the extended territories; and

(vi) the Sikh Sarpanches and Sikh Nayay Pardhans of Nagar Panchayats and Panchayati Adalats, respectively : Provided that the electors under clauses (iii), (iv),

(v) and (vi) are not disqualified under the proviso to section 49 of the Act.

(3) . . . . . . . . . • . . . . . . . . . . ... . . . . . . . . . . . . . . . . . '

(4) ........................ ······ ......... .

(5) ... ······ ................ ······•····· ... " It is worthy of note here that s. 148-B occurs in chapter XII-A and the heading of the chapter is "Temporary and Transitional Provisions" which indicates clearly enough that the provisions in sections 148-B to 148-F are temporary and transitional provisions.

It has been stated at the Bar that in about a year, a fresh election of the Board is due under s. 43-A, and the temporary and transitional provisions in chapter XII-A are to be in force only for the intervening period. Section 43-A which was also added by the amending Act of 1959 says -

" S. 43-A. (1) Whenever a new Board within the meaning of section 51 is constituted, it shall consist of-

(i) one hundred and forty elected members;

(ii) the Head Ministers of the Darbar Sahib, Amritsar, and the following four Takhats, namely:- the Sri Takhat Sahib, Amritsar, the Sri Takhat Keshgarh Sahib, Anandpur, the Sri Takhat Patna Sahib, Patna, and the Sri Takhat Hazur Sahib, Nanded; and

(iii) fifteen members resident in India, of w horn not more than five shall be residents of Punjab, coopted by the members of the Board as described in clauses (i) and (ii).

(2) The State Government shall, as soon as may be, call a meeting of the members of the Board described in clauses (i) and (ii) of sub-section (1) for the

purpose of co-opting the members described in clause

(iii) of that sub-section, and after the members have been co-opted, the State Government shall notify the fact of the Board having been duly constituted and the date of the publication of the notification shall be deemed to be the date of the constitution of the

Board." Thus, the new or permanent Board which will be constituted under s. 43-A will consist of (1) one hundred and forty elected members, (2) five designated members, and (3) fifteen co-opted members, and there will be no room for any nominated members therein.

The petitioners have raised no objections to the constitution of the Board under s. 43- A; all their objections are confined to the constitution of the Board under s. 148-B, even though it is a transient provision for the transitional period only.

What then are these objections, in so far as they bear on the alleged violation of the petitfoners' fundamental right under Art. 26 (b) of the Constitution?

Learned counsel for the pet.itioners has first commented on what he has characterised as undue haste in passing the amending Act of 1959. He has submitted that the Pepsu area came within the State of Punjab in November, 1956, and for about two years, the Punjab Government evinced no serious anxiety to extend the principal Act to that area; but from November 16, 1958, when the annual election of the Sikh Gurdwara Prabandhak Committee was held, up to January, 1959, when the amending Act of 1959 was pa.ssed, hurried proceedings were taken to enact the amending law in question and so constitute the Board that a particular group of Sikhs might not regain the majority it had lost on November 16, 1958. In our opinion these submissions (we do not say whether they are right or wrong) have no bearing on the question at issue before us.

The petitioners have not specifically alleged in their petition that the State Government has acted in any mala fide manner; and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this Court cannot be called

r959

Sardar Sarup Singh

State of Punjab

S. J(, Das].

Sardar Sarup Singh v.

State of Punjab

S. J(. Das].

508 SUPREME COURT l'tEPORTS [1959] Supp.

upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.

We do not say that in pronouncing on the rights of the parties before it, this Court must always stand aloof on the chill and distant heights of abstract logic and pay no heed to the great tides and currents which move society and men. If and when the occasion demands, for example, when there is violation of a fundamental right guaranteed by the Constitution, it will never hesitate to act. But it is well to remember that a fundamental right, such as freedom of religion, is of an enduring character and must stand beyond the sweep of changing and deflecting forces of current opinion. Our limited function in this case, therefore, is to examine the constitutionality of s. 148-B, and to that task we must now confine our attention.

The main argument of learned counsel for the petitioners is that Art. 26(b) gives to every religious denomination, or any section thereof, the right" to manage its own affairs in matters of religion" and the right is subject only to public order, morality and health. In this case, according to him, the right is given to all members of the Sikh denomination and not to any particular members thereof, to manage Sikh gurdwaras; therefore, the right must be exercised by all Sikhs, and they alone must elect their representatives to manage Sikh gurdwaras; and to the extent that s. 148-B departs from the aforesaid principle, it constitutes an infringement of the right guaranteed to the petitioners under Art. 26(b) of the Constitution.

We are unable to accept this argument as correct.

Article 26 of the Constitution, so far as it is relevant for our purpose, says-

" Art. 26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right--

(a) ......................... ..

(b) to manage its own affairs in matters of religion;

(c) ......................... ..

(d) to administer such property in accordance with law." The distinction between els. (b) and (d) strikes one at once. So far as administration of its property is concerned, the right of a religious denomination is to be exercised in "accordance with law", but there is no such qualification in cl. (b). In The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), this distinction was pointed out by this Court and it was there observed: "The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion.

The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose". Secondly, the expression used in cl. (b) is ' in matters of religion '.

In what sense has the word 'religion' been used?

This was considered in two decisions of this Court : The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (') and Sri V enkataramana Devaru v. The

State of Mysore (2), and it was held that freedom of religion in our Constitution is not confined to religious beliefs only, but extends to essential religious practices as well subject to the restrictions which the Constitution has laid down. In The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1) it was observed at p. 1026 that under Art. 26(b), a religious denomination or organisation enjoys complete autonomy in the mat.ter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold (we emphasise here the word 'essential'). The same emphasis was laid in the later decision of Sri

Venkataramana Devaru v. The State of Mysore( 2 ), where it was said that matters of religion in Art. 26(b) include practices which are regarded by the community as part of its religion.

Two questions, therefore,

(r) (r954] S.C.R. roo5, 1023, ro26,

(2) [r958] S.C.R. 895.

Sardar Sarup Singh v.

State of Punjab

S. !{, Das ].

Sardar Sarup Singh

Stale of Punjab

S. ]{. Das ].

arise in connection with the argument of learned counsel for the petitioners: (1) does s. 148-B added to the principal Act by the amending Act of 1959 have reference only to administration of property of Sikh gurdwaras and, therefore, must be judged by cl. (d) of Art. 26 or (2) does it affect 'matters of religion' within the meaning of cl. (b) of the said Article ?

The argument on behalf of the petitioners is that the principal Act to which s. 148-B has been added relates not merely to administration of properties of Sikh gurdwaras but also to matters of religion and in so far as s. 148-B brings in new members into the Board, it affects Sikhs in their religious affairs.

The argument on behalf of the respondent State is that matters of religion in the sense of essential beliefs and practices of the Sikh faith are left untouched by s. 148-B, and even other relevant sections of the principal Act do not interfere with Sikh religion. In this connection, our attention has been drawn to the provisions in Ch. X which deal with the powers and duties of the Board and to those in Ch. XI which deal with powers and duties of Committees. Section 125, to which we have already referred,· states that the duty of the Board is to ensure that every Committee deals with the property and income of the gurd wara or gurd war as it mana.ges in accordance with the provisions of the Act and in fulfilment of that duty, the Board has vested in it control, direction and general superintendence over all committees appointed under the provisions of the Act.· Section 129 states-

" S. 129. 'rhe Board in any meeting may consider and discuss any matter with which it has power under this Act to deal and any matter directly connected with the Sikh religion, but shall not consider or discuss, or pa•s any resolution or order upon, any other matter." Ifs. 129 is read subject to s. 125 as the learned Ad vocate-General for the State contends it should be read, then the powers and duties of the Board, in substance and effect, relate to administration of gurdwara properties and matters ancillary thereto. They have

hardly any reference to ' matters of religion '.

Section 133 states generally the powers of Committees, and one of the powers is ' enforcing the proper observance of all ceremonies and religious observances in connexion with such gurdwara or gurdwaras and of taking all such measures as may be necessary to ensure the proper management of the gurdwara or gurdwaras and the efficient administration of the property, income and endowments thereof. ' Learned counsel for the petitioners has emphasised that part of the section which relates to 'proper observance of all ceremonies and religious observances ' and has contended that as the Board is the committee in respect of some of the principal gurdwaras, it has a duty to ensure proper observance of all essential religious ceremonies of the Sikh faith, which according to him is a 'matter of religion'. Under s. 134, the Committee

has power inter alia to dismiss an office-holder or minister, if he fails in the performance of ' any rituals and ceremonies in accordance with the teachings of Sri Guru Granth Sahib ' or has ceased to be a Sikh ; it is contended that this power also relates to a 'matter of religion' within the meaning of Art. 26(b).

Without .a fuller and more detailed examination of the provisions of the principal Act we hesitate to pronounce finally on the larger question if any of the other provisions of the principal Act affect matters of religion ; nor do we think it necessary to decide that larger question in the present case. vVe are of the view that the present petition can be decided on a shorter ground, even if we proceed on the assumption that some of the provisions of the principal Act relate to matters of religion and the Board, either acting in exercise of its power of control, direction and superintendence over other committees or in its capacity as the committee for certain gurdwaras, can pass orders about matters of religion.

We may point out, however, that the preamble of the principal Act indicates that it is mainly a law to provide for the better administration of certain Sikh gurdwaras and it is admitted that in so far as the powers of the Board relate to mere administration of gurdwara properties in either

I959

ardar Sarup Si;, gh

Stale of Punjab

S. R. Das ].

'959

Sardar Sarup Singh v.

State of Punjab

S. K. Das ].

512 SUPREME COtJRT REPORTS tl95i)) Supp.

of its two capacities, such administration must be in accordance with law, and the appropriate legislature can lay down what the law should be.

The question which is decisive of the present petition is-does s. 148-B interfere in matters of religion? Sections 133 and 134 of the principal Act are not impugned before us; what is impugned is s. 148-B. That section has not in any way affected whatever powers the Board or Committee has under ss. 133 and 134 of the principal Act. The gravamen of the objections urged on behalf of the petitioners is that s. 148-B introduces, even though as a temporary measure, some more designated Sikh Members into the Board by cl. (a) of sub.s. (1) thereof and further introduces the election of thirty-five Sikhs (from the Pepsu area) into the Board by means of an indirect method, that i8, by a limited Sikh electorate, the members of which electorate are in their turn elected by Sikhs as well as non- Sikhs. In order to establish their case, the petitioners must prove not merely that some provisions of the principal Act refer to matters of religion, but that the introduction of new members into the Board in respect of the extended territories of the Pepsu area, in the manner envisaged by s. 148-B, violates by itself the right of the Sikhs in a matter of religion.

Learned counsel for the petitioners is th us forced to take up the stand that a direct election of the members of the Board by the entire Sikh community is itself a matter of the Sikh religion and, therefore, part of the content of the right guaranteed under Art. 26(b).

We do not think that such a stand is correct or justified by Art. 26 of the Constitution : nor has any authoritative text been placed before us to show that a direct election by the entire Sikh community in the management of gurdwaras is part of the Sikh religion.

The principal Act, as it stood before the amending Act of 1959, does not support any such contention.

However great our respect may be for the democratic principle of direct election, we do not think that having regard to the provisions of the principal Act and the circumstances in which s. 148-B came to be added thereto, the principle of clircct

election on universal denominational suffrage can be raised to the pedestal of religion within the meaning of Art. 26(b) of the Constitution. If it were so raised, then the co-option of some members which has not been challenged by the p<; l.titioners would also be violative of their fundamental right; so also any restrictions which the principal Act or the rules made thereunder may impose in the matter of election or the exercise of the vote, such as, restrictions with regard to the age of the voter, etc. Obviously, these are not matters of religion and we say without meaning any. offence to anybody that to treat these as matters of religion is tantamount to confusing religion with current politics.

It is to be remembered that the principal Act constituted a Board representative of the Sikhs both inside Punjab and outside it; that is why in the constitution of the Board there was provision for election, nomination, designation of the head ministers of certain principal Sikh gurdwaras, and also co-option.

The purpose obviously was to make the Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co-option.

The designation of the head ministers of the tive principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board.

In 1953, nomination was done away with and the number of co-opted members was increased to twentyfive, of whom at least twelve were to be residents of Pepsu. This was even before the principal Act was extended to the Pepsu area. When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: s. 148-B gives representation to those areas as an interim measure and s. 43-A as a permanent measure. Considering s. 148-B in the light of these circumstances, we 65

I959

Sardar Sarup Singh v.

State of Punjab

S. K. Das j.

I959

Sardar Sat'up Singh

State of Punjab

S. K. Das J.

are unable to hold that it violates the fundamental right of the Sikhs under Art. 26(b) of the Constitution.

The method of representation for the extended areas during th!J interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion. The question before us is not whether a more satisfactory arrangement could have been made even for the interim period; perhaps, it could have been.

Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period. That may be unfortuuate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom ofreligion.

We now proceed to consider the specific grievances which the petitioners have made in respect of the persons who come into the Board under s. 148-B. As to the members of the Interim Board, Patiala, who under cl. (a) of sub-s. (I) of s. 148-B are deemed to be members of the Board constituted under s. 43, it is argued that they were appointed under a Punjab Government notification dated January IO, 1958, and though they are Sikhs, they do not represent the Sikh community and are mere nominees of Government; furthermore, they are not subject to the disqualifications mentioned in ss. 45 and 46 of the Act in respect of elected and co-opted members respectively. We have pointed out earlier that the principal Act contained a provision before 1953 for nomination of 12 members by the Rajpramukh of Pepsu ; and after 1953, the co-opted members included twelve residents of Pepsu. By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was constituted to look after certain gurdwaras of the Pepsu area, and after merger the appointment was made by the Governor of the Punjab. Under s. 148-A which was also added to the principal Act by the amending Act of 1959, the Interim Gurdwara Boatd, Patiala, has ceased to function, and under s. 148-B(l)(a) the members of the Interim Board, Patiala, have become members

of the Board constituted under s. 43.

We are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental right ; nor do we think that the non-application of the disqualifications stated in ss. 45 and 46 of the Act to these members advances the case of the petitioners any further. The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co-opted members and after nomination had ceased in 1953, of elected or co-opted members only. It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications; furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any of the disqualifications stated in s. 45 or s. 46. With regard to the thirty-five Sikhs to be elected under cl. (b) of sub-s. (1) of s. 148-B, there is a threefold contention. It has been submitted that (1) the electorate detailed in sub-s. (2) of s. 148-B is not representative of all the Sikhs ; (2) some of the members of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non-Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government.

VVe do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the Board for the extended areas as an interim measure is not a matter of religion. The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs.

Unles one proceeds mechanically on mere abstract considerations, there is no real basis for the

I959

Sardar Sarup Singh v.

State of Punjab

S. J{, Das ].

I959

Sardar Sarup Singh

State of Punjab

S. J(. Das j.

April I.

516 SUP HEME COUB, T REPORTS [1959] Supp.

contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and N aya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under Art. 26 (b) of the Constitution.

It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty .five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty-five co-opted members of the Board.

For the reasons given above, we hold that the petitioners have failed to make out a case of violation of their fundamental right. Accordingly, the petition fails and is dismissed with costs.

Petition dismissed.

OM Pl~ABHA JAIN v.

GIAN CHAND & ANOTHER

(JAFER IMAM, A. K. SARKAR and K. SuBBA RAO, JJ.)

Election Dispute-Deposit for security for costs-Dismissal of Election Petition for non-compliance with rules therefor-Appeal- Maintainability-" Trial·. meaning of-Recitals in deposit receipt -"On whose behalf", meaning of-Representation of the People Act, r95r (5r of r9sr), ss. 90(3), 98, 99, rr6-A, rr7.

Section II7 of the Representation of the People Act, r95r, provided: "The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him ...... in favour of the Secretary to the Election Commission as security for the costs of the petition."

The respondent, who filed an election petition challenging the validity of the appellant's election, deposited the amount as required under s. II7 of the Act.

In the deposit receipt, the \.VOrds "Secretary to the Election Commission " were put in as against the name of the person on whose behalf money was paid.

The appellant contended that the receipt in this form showed that the money had been paid by the respondent acting for the

s. 23

Limitation Act

s. 23

SARDAR SARUP SINGH & OTHERS

THE STATE OF PUNJAB & OTHERS

S. R. DAS

P. B. GAJENDRAGADKAR

K. N. WANCHOO, JJ.

Meaning of-Sikh Gurdwaras Act

ss. 43, 43A

Constitution of India

Art. 26(b}, (d)

Sikh Gurdwaras Act, 1925

s. 43

s. 43

s. 43

Art. 32

Art. 26(b)

s. 148B(1)(a)

s. 43

s. 148B

Art. 26(b)

s. 148B

Art. 26(b)

s. 148B

s. 148B

Article 32

Constitution of India

Art. 32

s. 148

s. 148

Art. 26(b)

s. 148

s. 43

Art. 26(b)

Art. 26(b)

s. 148

Art. 371

s. 148

s. 148

s. 125

s. 43

Previous to the passing of Punjab Act

s. 43

S. 43

s. 148

S. 148

section 43

section 43

section 43

section 43

section 49

s. 148

sections 148

s. 43

Section 43

S. 43

section 51

s. 43

s. 43

s. 148

Art. 26

s. 148

Art. 26(b)

s. 148

Art. 26(b)

Article 26

Art. 26

Art. 26(b)

Art. 26(b)

s. 148

Art. 26

s. 148

s. 148

s. 148

Section 125

Section 129

S. 129

s. 125

Section 133

s. 134

Art. 26(b)

s. 148

Sections 133 and 134

s. 148

ss. 133 and 134

s. 148

s. 148

Art. 26(b)

Art. 26

s. 148

Art. 26(b)

s. 148

s. 43

s. 148

Art. 26(b)

s. 148

s. 148

s. 43

ss. 45 and 46

s. 148

s. 148

s. 43

ss. 45 and 46

s. 45

s. 46

s. 148

s. 148

Art. 26

Representation of the People Act

ss. 90(3), 98, 99

Representation of the People Act