Gurdwara Parbandhak Committee, ... vs Jagmohan Singh And Ors.
1971 Latest Caselaw 159 Del

JUDGMENT

S. Rangarajan, J.

(1) Regular First Appeal No. 110 of 1967 is an appeal by the Gurdwara Parbandhak Committee, Delhi (defendant No. 23 in the suit and hereinafter called "the GPC') and Regular First Appeal No. 111 of 1967 is by Jathedar Santokh Singh (defendant No. 19) against the decree of the Additional District Judge, Delhi, granting a declaration that the award made by the 1st defendant (Bakhshi Gurcharan Singh) on 29th April 1968 as well as the reference to arbitration were invalid and inoperative. The Additional District Judge did not grant the other declaration prayed for that the committee constituted previously to the award (consisting of defendants 1 to 6, 22, 24 to 28 and original plaintiffs I to 3) in September 1961 was entitled to carry on. As against the refusal there has been no appeal or cross-appeal. Fao, No. 98 of 1967 is by Dan Singh (defendant No. 11 in the suit) and Fao No. 99 of 1967 is by the Gpc and Jathedar Santokh Singh. Both the FAOs are against the order of the Additional District Judge holding, in the proceedings before him under sections 30 and 33 of the Arbitration Act (which will hereinafter for purpose of convenient reference be called "the arbitration proceedings"), that the above said reference to arbitration and the award by the 1st defendant Bakhshi Gurcharan Singh) were invalid and consequently setting aside the award.

(2) This judgment will dispose of the aforesaid Regular First Appeals and the FAOs.

(3) The Shiromani Gurdwara Parbhandhak Committee, Amritsar (hereinafter called the Shiromani Committee) is a statutory body recognised by the Sikh Gurdwaras Act of 1925. Even though the application of this Act is limited to Punjab the Bye-laws of the Gpc, a Society registered under the Societies Registration Act 1860, providing for the management of Sikh Gurdwaras and religious institutions in Delhi have given to the Shiromani Committee certain rights of supervision and control, including conduct of elections and making nominations to the GPC. According to the bye-laws and rules (Ex. OW. 4/1), the members of the Gpc were those who were members at the time when the Gpc was registered in 1944 and those who were thereafter to become members. It is common ground that except the fifteen committee members there were no other members. According to its aims and objects the Gpc was (a) to manage the historic and other Gurdwaras of Delhi in such a way as to make them inspiring centres of the Sikh tradition, Sikh culture and Sikh religion; (b) to spread education, especially the knowledge of Punjabi and Gurmukhi, by establishing educational institutions and libraries, inclusive, of giving aid to such institutions and payment of stipends to students; to provide suitable accommodation for the pilgrims; to maintain free kitchens (langaras), to open free dispensaries; to do such other religious and charitable acts and (c) to render all help to the cause of the uplift of the Sikh community. Out of the fifteen members eight were to be elected by the Sikh voters of Delhi and seven were to be nominated by the Shiromani Committee from amongst the Sikh residents of Delhi. The Gpc manages practically all the Sikh Gurdwaras in Delhi and runs a number of educational institutions, hospitals, public libraries, etc. The annual income which was stated to be 12 lakhs in 1962, is now stated to be nearly 50 lakhs.

(4) The elections to the Gpc were to take place once every five years. In 1958, four out of fifteen members submitted their resignations owing to constant quarrels and bickcrings. On 24th March 1959 the Gpc was dissolved and it was decided to hold fresh elections to constitute a newcommittee. An ad hoc committee consisting of five persons was formed. On 28th March 1959 certain members of the Gpc headed by Mr. Cyan Singh Vohra, Advocate, passed a resolution severing connections with the Shiromani Committee. This resolution was, however, not accepted by the Shiromani Committee on the ground that it would result in an amendment of the Bye-Laws of the Gpc which could not be done without their concurrence. On account of these disputes there was a reference to arbitration of Sardar Baldev Singh and Giani Gurmukh Singh Mussafir. They made an award on 27th September 1959 constituting a committee of fifteen membersThereupon, Mahar Singh and others filed a representative suit under Order I Rule 8 of the Code of Civil Procedure (Suit No. 177 of 1959) in the court of Mr. Balwant Singh Sekhon, Subordinate Judge 1st Class, Delhi, contending that the Shiromani Committee could not in law exercise any powers of control, management, interference or supervision over the Gurdwaras in Delhi. This contention was upheld by Mr. Sekhon in an ex parte judgment (Ex. R. 5) dated 12th May 1960 and an injunction was accordingly granted against the Shiromani Committee. Then, a committee was formed in September 1961 (which will hereinafter be called "the September Committee") consisting of present defendants I to 6. 23. 24 to 28 and original plaintiffs 1 to 3.

(5) On 17th September 1961 Sartokh Singh (defendant No. 19 in the suit out of which the two RFAs arise) and four others of the Gpc who were in office since 1959 filed a suit against the Shiromani Committee and 23 others in the court of Mr. K. L. Wason, Subordinate Judge 1st Class, Delhi, challenging the formation and validity of the September Committee. Mr, Wason granted an ad interim injunction on 1st December 1961 restraining the September Committee from exercising control over the Gpc or the institutions under its charge. Against this order three appeals were filed by the Shiromani Committee, the Gpc and Jaswant Singh separately. A settlement was, however, arrived at after considerable deliberations whereunder the appeals and the suit were to be withdrawn and the September Committee was to dissolve itself. Defendant No. 1 (Bakhshi Gurcharan Singh) in the suit out of which the two RFAs arise was appointed sole arbitrator to settle all the disputes and constitute a new Gpc by nominating members at his discretion. The suit and the three appeals were withdrawn on 10th April 1962 as a result of the above settlement.

(6) Before the said settlement was arrived at, a meeting of the September Committee was summoned by its President "to consider the matters connected with the Gurdwaras and the suit". The meeting was to take place at 8 P.M. at Sis Ganj Kurdwara on 6th April 1962. The notice of the said meeting was served on all the members of the Gpc except Kuldip Singh (original 1st plaintiff) whose sister, however, received the same at about 10 A.M. on that date. Kuldip Singh did not attend the meeting; nor did he sign the reference (which is stated to have been signed by others on the previous day) to arbitration. It was unanimously resolved at this meeting that the Gpc should dissolve itself; that the suit and the appeals should be withdrawn and that all the disputes should be referred to Bakhshi Gurcharan Singh for decision. On 10th April 1962, a compromise was filed in the court of Mr. Wason withdrawing the suit; this was signed by Mr. Dhanbir Singh, the lawyer of Kuldip Singh, but not by Kuldip Singh himself. The appeal which had been preferred by Kuldip Singh through Mr. Dhanbir Singh in the court of Mr. Sharma was also withdrawn on the same day. Thus both the suit and the appeals were withdrawn.

(7) Bakhshi Gurcharan Singh made an award on 29th April, 1962 nominating 19 persons, including himself, (defendants 1 to 19 in the suit) to the new Gpc and suggesting two more to' be co-opted. Defendants 20 and 21 were thus co-opted. To start with the term of this committee was to be three years which could be extended by another two years by a 60% majority resolving to that effect.

(8) The present suit, out of which the RFAs arise, was filed within a few days thereafter, on 8th May 1962, for the following reliefs: "(A)Declaration to the effect that the agreement of arbitration, dated 10th April 1962, the award given by defendant No. 1 on 29th April 1962, consequent thereto, modification of the award by the defendant No. 1 subsequently make (sic) provision as regards co-option of two members are inoperative and the change of rules and bye-laws made by the defendant No. 1 contained in his award announced on 29th April 1962 are wholly illegal, ultra vires, void, ineffective and inoperative, and (b) Declaration to the effect that the Gurdwara Parbhandak Committee as functioning since September 1961 is entitled to carry on, and also restraining the defendants Nos. 1 to 21, as members of the Gurdwara Parbandhak Committee constituted by defendant No. 1 from working as Gurdwara Parbandhak Committee or interfering with the working of the former."

(9) It is needless to notice the details of the attempt made to withdraw relief (b) and the further application to amend the plaint because the said relief substantially remains.

(10) The original plaintiffs were Kuldip Singh, Indermohan Singh, Madan Singh, Rattan Singh and Jagmohan Singh. Of them Kuldip Singh and Indermohan Singh (plaintiffs 1 and 2) withdrew from the suit and joined the committee which was formed in April 1962; Madan Singh (plaintiff No. 3) also withdrew from the suit. By an order dated 1st August 1966, on an application made by the defendants, it was held that the statement of Rattan Singh (plaintiff No. 4), who had been examined, showed that he was no longer interested in the suit and his name was dropped. An express order was passed on 20th December 1966 on a petition filed by the original plaintiffs I to 3 permitting them to withdraw. Thus the sole surviving plaintiff in the array of the original plaintiffs was Jagmohan Singh. Subsequently permission was granted under Order 1 Rule 8 of the Code of Civil Procedure to four other persons (present plaintiffs 1 to 4) along with Jagmohan Singh (plaintiff No. 5) to continue the suit.

(11) Sadhu Singh and Suchet Singh applied, on 12th June 1962, under section 14 of the Arbitration Act, for the award by Bakhshi Gurcharan Singh to be filed in the court for enabling them to question its validity. After it was filed in court two sets of objections were filed; one by the Shiromani Committee and the other by six persons of whom all the others except Mr. Cyan Singh Vohra now support the committee formed in April 1962 under the award of Bakhshi Gurcharan Singh. Even Mr. Cyan Singh Vohra had by the end of 1966 accepted the office of the Vice-President-ship of the said committee formed in April 1962. In addition to defendants I to 6, who were nominated by Bakhshi Gurcharan Singh under the award and who had been previously members of the September Committee and had aso joined the April 1962 Committee, defendants 7 to 21 were nominated under the award of defendant No. 1.

(12) The following preliminary objections to the maintainability of the suit were raised in the written-statements of the contesting defendants : (1)The suit was barred by the provisions of the Arbitration Act. (2) The suit related to matters of internal management. (3) The suit for a bare declaration was not maintainable. (4) The suit was barred under section 92 of the Code of Civil Procedure.

(13) On the merits, the suit was contested and the award was objected to, broadly speaking, on the ground that both the reference to arbitration and the award, were invalid. The validity of the reference was mainly attacked on the necessary interested parties viz., the Shiromani Committee and Kuldip Singh not actually joining or being parties to the references. The award was said to be illegal not only on the ground of the reference itself being invalid but also on the ground that the arbitrator, who had gone to the length of nominating himself to the committee, had been permitted to decide and had decided the disputes in a manner not warranted by and even opposed to the constitution of the GPC. This objection was sought to be met on a twofold basis: (1) that Bakhshi Gurcharan Sinh was not an arbitrator but only a referee and (2) that he had not altered any rule but had only used the power of relaxation of rules given by the constitution of the Gpc itself to nominate a committee.

(14) It is not necessary to set out the various issues framed by the trial court in the suit and in the arbitration proceedings; some of them were common and many of those-even those pressed before us were either repetitive or overlapping to some extent. Nor is it even necessary to set out here the various findings on each issue-even those pressed before us-for they are referred to while discussing the contentions put forward before us. It will, therefore, be sufficient at this stage to state that the preliminary objections to the maintainability of the suit were over-ruled and the reference to the arbitration of Bakhshi Gurcharan Singh as well as his award were held to be invalid. The declaration sought that the September Committee was entitled to carry on was not granted. There has been no appeal or cross-appeal by the plaintiffs regarding this portion of the relief which was not granted and which must be deemed to have been refused.

(15) Mr. Ved Vyas, learned counsel for the Gpc (appellant in RFA. 110 of 1967 and one of the appellants in FAO. 99 of 1967) urged before us the following preliminary objections to the maintainability of the suit: (1)The present plaintiffs 1 to 5 who only claim at best as worshippers and/or voters cannot file the present suit pertaining to the management of a society registered under the Societies Registration Act. (2) Even if such a suit was permissible the court would not interfere with the internal management of that Society. (3) In any case the suit in substance seeks directions in respect of the administration of a public trust of a religious and charitable nature and the same having been brought without obtaining sanction of the Advocate-General or the Collector of Delhi is hit by section 92 read with section 93 of the Code of Civil Procedure. (4) None of the present five plaintiffs in the suit have any legal character" and hence are not entitled to obtain a declaration under the old section 42 (present section 34) of the Specific Relief Act.

(16) It is worth recalling that among the five original plaintiffs only Jagmohan Singh continues to be one of the plaintiffs and that the other four are no longer there. The original plaintiffs I to 3 (Kuldip Singh, Indermohan Singh and Madan Singh), who were members of The September Committee withdrew from the suit; the first two persons Kuldip Singh and Indermohan Singh were also members of the April 1962 Committee which was constituted,by Bakhshi Gurcharan Singh (defendant No. 1) . The original 4th plaintiff Rattan Singh was only a member of the Sikh community like the original 5th plaintiff, Jagmohan Singh. None of the five present plaintiffs are members of the registered society (the GPC); all they claim is a right to worship in the Gurdwaras and have the benefit of the other institutions in Delhi which are managed by the Gpc as members of the Sikh Community of Delhi, as per its constitution.

(17) Relying upon what is known as the rule of Foss v. Harbottle (62. Revised Reports 185) and the other English cases which followed it, Mr. Ved Vyas has urged that the present suit which has not been brought in the name of the Society (the GPC) is not sustainable and that the rule in Foss v. Harbottle, laid down in the case of companies, has since been extended to societies registered under the Societies Registration Act. The bill in that case was field by two proprietors in a Company incorporated by an Act of Parliament, on behalf of themselves and all other proprietors of shares, except the defendants, against five directors (three of whom had become bankrupt), a proprietor who was not a director, and the solicitor and architect of the company; the defendants were charged with various fraudulent and illegal acts. The demurrer, that the company could obtain redress in its corporate character and that the plaintiffs could not sue in a form of pleading which assumed the practical dissolution of the Corporation, was allowed.

(18) In Mozley v. Alston (65 Revised Reports 520) it was held that a suit by an individual shareholder in an incorporated Company, complaining of an injury to the corporation, cannot be maintained, if it appears that the plaintiffs have the means of procuring a suit to be instituted in the name of the corporation itself.

 (19) This position was further explained by Mellish L.J. in Macdougalt v. Gardner (1975-1 Ch. 13 on page 25) as follows :-    "IN my opinion if the thing complained of is a thing which in substance the majority of the company are entitled to do, or. if something has been done irregularly which the majority of the company is entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes."  

 (20) In that case a single shareholder, suing on behalf of himself and all other shareholders (except the directors) complaining of the breach of the articles was non-suited,  
 

 (21) Jenkins L.J. summed up the rule in Edwards v. Halliwell (1950- 2 All. E. R. 1064 on page'1068) as follows :-    "the rule in Foss v. Harbottle, as I understand it, comes to no more than this. First, the proper plaintiff in an action in respect of a wrong alleged to' be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favor of what has been done, then cadet quaestio."  

 (22) After referring to the above cases and the observations of Jenkins L. J. the following have been explained to be the exceptions to the rule in Foss v. Harbottle (vide Palmer's Company Law, 21 Edition page 503-    "the following exceptions to the rule in Foss v. Hairbottle(1) are admitted : the majority cannot confirm. (1) an act which is ultra vires the company or illegal; (2) an act which constitutes a fraud against the minority and the wrong-doers are themselves in control of the company; or (3) a resolution which requires a qualified majority but has been passed by a simple majority."  

 (23) Bhagwati J. applied in Satyavarti Sidhantalankar v. Arya Samaj Bombay (AIR 1946 Bombay 516) the above said principles to a Society registered under the Societies Registration Act I860- His Lordship observed as follows :-    "the society is neither a corporation nor a limited company incorporated under the Indian Companies Act. It is a registered society of individuals which has acquired a legal status by reason of its registration with the registrar of Joint Stock Companies under the provisions of the Societies Registration Act. Every member of a corporation or an incorporated company joins the same on the basis that prima fade the majority of the members is entitled to exercise its powers and control its operations generally. The same would be the position in the case of unincorporated associations of individuals whether the same be registered under the Societies Registration Act or not. The rule of the majority is the normal basis of these associations. The members of these associations do join these associations whether incorporated or unincorporated, whether registered or unregistered, knowing full well that the affairs of these associations would be conducted normally by the vote of the majority of the members thereto."  

(24) The observation of S. K. Das J. in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi that a Society registered under the Societies Registration Act is not a Corporation cannot assist the respondents. Referring to the observations of Kania J. (as his Lordship then was) in Krishnan v.Sundaram (AIR 1941 Bombay 312) S. K. Das J. observed that if Kania J. meant that such a society is a corporation in the sense of being incorporated as that term is legally understood, he was unable to accept it as correct. As explained by Bhagwati J. the rule of majority is the normal basis of associations like the societies registered under the Societies Registration Act. Bhagwati J. had himself pointed out that such a society was not a corporation.

(25) The present five plaintiffs are complaining of an injury to the Gpc which has been registered under the Societies Registration Act. None them is even a member of the GPC. The present suit is not brought on behalf of the society. As they are not members of that society it cannot be brought by them in the name of the Society (the GPC) either. Permission under Order I Rule 8 of the Code of Civil Procedure had no doubt been obtained. That would only mean that a declaration obtained in this suit would ensure to the benefit of the Sikh community in Delhi. But the real point-is whether any member of the Sikh community can bring such a suit complaining that by virtue of the award made by Bakhshi Gurcharan Singh .the constitution of a registered society, namely, the GPC., has been violated and that there is thus a legal injury to the GPC. We have not been shown any authority or principle which enables such a suit to be filed by the present plaintiffs who are not even members of the GPC.

(26) The contention that the award made by Bakhshi Gurcharan Singh offends the constitution of the; Gpc is in the very nature of things a contention which could be put forward only by a member of the Gpc but not by, any member of the Sikh community merely because that society is concerned with the administration of properties and affairs in which the Sikh community is interested. Such considerations would no doubt enable a member of the community qua worshipper or even as one who can elect the members of the committee of that society to bring an action under section 92 of the Code of Civil Procedure but they are hardly relevant for allowing the five present plaintiffs to sue in respect of an injury to that society of which they are not even members.

(27) The original plaintiffs I to 3, who were members of the September Committee could probably have asked for amending the present plaint in the name of and on behalf of the said society-if they had continued as plaintiffs. After they dropped out (four of them except the 5th plaintiff were substituted in the place of the original plaintiffs 1 to 4) that was not possible. From and after 20th December 1966, when permission was granted to the original plaintiffs I to 3 to withdraw there was not even a single member of the society the GPC) among the plaintiffs who sought to continue the suit. It was not competent for the four substituted plaintiffs and the only surviving plaintiff to ask for a declaration as to who should or should not be members of the Gurdwara Parbandhak Committee.

(28) Regarding the second preliminary objection to the maintainability of the suit Mr. Ved Vyas fairly conceded that if the present suit had been brought in the name of the society and by members of the said society it would have been permissible for them at least to agitate the question of the reference to arbitration and the award being ultra vires of the rules of the society, this being one of the exceptions to the rule in Foss v. Harbottle. But they could not agitate in the suit other questions like whether notice had been sent to all the concerned members for the meeting of the Committee on 6th April 1962; whether the notice sent was itself had for not disclosing the purpose for which the meeting was held and if any of them was not party to the reference, what would be its effect on the award. These and similar questions would, however, fall for consideration in the arbitration proceedings.

(29) Regarding the third preliminary objection to the maintainability of the suit, it can hardly admit of any doubt that the institutions which are said to be in the care of the GPC., are trusts for public purposes of a charitable and religious nature. The present plaintiffs are undoubtedly interested in the said trust. The trial court's view that the members of the Gpc were not trustees but only managers could not be seriously supported before us. The decided cases pertaining to a Mutctwalli, who has been held to be only a manager, do not apply to this case.

(30) The objects of the Gpc have been already set out; they are both religious and charitable. Those in the committee and even their near relations were prevented from having any business dealings with any of the Gurdwaras under the control of the Committee; no near relative of a member of the committee could even be employed in any of the Gurdwaras [vide rule 16 (General) of the Bye-laws and Rules]; while prescribing the qualifications for membership rule 5 disqualified a paid servant of the Committee from becoming a member. Having regard to the above and the other rules and bye-laws it is clear that the committee members were trustees of the properties which were being administered by the society. According to section 5 of the Societies Registration Act the property of a registered society, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society; there was not even any suggestion that the properties under the management of the Gpc were vested in other trustees. According to section 14 of the said Act upon dissolution of any registered society its property shall not be paid to or distributed among the members of the said society but will have to be given to some other society as may be determined by a three-fifth majority or as determined by court.

 (31) Our attention has been invited to the following observations of Satyanarayana, Raju J. in Pamulapati Buchi Naidi College Committee Nidubrolu and others v. Government of Andhra Pradesh and others (AIR 1958 Andhra Pradesh 773) :-    "THE Societies Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustees. What all the members are entitled to, is the right of management of the properties of the society subject to certain conditions."  

 (32) We respectfully agree. None of the members of the Gpc had any personal interest in its properties. Their position, therefore, is not analogous to managers; they are trustees.  
 

 (33) Mr. Gosain did not dispute the fact that section 92 of the Civil Procedure Code would apply not only to trustees de jure but also to trustees de facto or de son tort. It is needless to refer to the decided cases on the subject because he fairly stated that apart from one or two decisions to the contrary the judicial concensus was that section 92 applied to even trustees de son tort. The members of the Gpc were at least trustees de son tort. Mr. Gosain, however, sought to steer clear section 92 of the Code of Civil Procedure by urging that there has been no allegation of any breach of trust by the members of the GPC. It may be recalled that the suit itself was filed within a few days of the nominations made by Bakshi Gurcharan Singh. We see no force 'in the said contention of Mr. Gossain. Section 92 of the Code of Civil Procedure postulates not only cases where there are allegations concerning breach of any express or constructive trust created for public purposes of a charitable or religious nature but also cases where direction of the court is deemed necessary for the administration of any such trust. If any one of those two conditions is present then a suit may lie with the consent of the Advocate-General (or the Collector outside the Presidency towns under section 93) to obtain a decree for removing any trustee, appointing a new trustee, settling a scheme, etc. It will be sufficient on this point to refer to Ramdas Bhagaj v. Krishna Prasad Tewari and others (AIR 1940 Patna 425) where four conditions necessary to invoke the application of section 92 have been stated. Head-note (a) reads as follows :-    "four conditions are necessary in order to invoke the operation of S. 92: (1) the trust must be for a public purpose of a charitable or religious nature; (2) the plaint must allege that there is a breach of such a trust or that the direction of the court is necessary for the administration of the trust; (3) the suit must be not only in the interest of the plaintiff individually but in the interest of the public or in the interest of the trust itself (for where the trust is a public one, the interest of the trust will be interest of the public) and (4) the relief claimed in the suit must be one of the reliefs mentioned in the section."  

 (34) It was also observed in this case that while examining the application of section 92 of the Code of Civil Procedure the allegations in the plaint alone have to be looked at though the Court must look to the substance of the claim and not merely its wording.  
 

 (35) Referring to Budree Das Mukim v. Chooni Lal Johurry and others (2nd 33 Calcutta 789) Bijan Kumar Mukherjea has observed in The Hindu Law of Religious and Charitable Trust (Tagore Law Lectures) Second Edition at page 405 as follows :-    "A suit under section 92 would lie even without any allegation of a breach of trust if it is necessary, according to the case of the plaintiff, to have directions from the court regarding the administration of the trust, The directions as Mr. Justice Woodroffe pointed out in the Budreedas v. Choonilal (2nd 33 Calcutta 789) are such directions as are necessary for the carrying out of the trust and as are given to a trustee where there is one or a new trustee where one is to be appointed. The nature of the reliefs expressly mentioned in the section gives a clear indication as to what these directions are- Thus a settlement of scheme would be a proper direction under section 92 of the Civil Procedure Code."  

 (36) Benson and Bhashyam Ayyangar JJ. held in Moti Rama Jogish and three others v. Venkatacharulu and three others (2nd 26 Madras 450) under the old section 539 of the Code of Civil Procedure, corresponding to the present section 92, a suit for the appointment of new trustees to a temple would come within the expression "whenever the direction of the court .is deemed necessary for the administration of such trust."  
 

 (37) A Division Bench of the Calcutta High Court held in Girija Prosunno Roy v. Bechdram Poctra (35 Indian Cases 846) that when the interest which the plaintiffs have in a public trust as members of the public is not sufficient to enable them to maintain a suit under section 92 of the Code of Civil Procedure without the consent of the Advocate-General, they cannot by saying that they represent the whole of the Hindu population get a sufficient interest to sue apart from section 92. We respectively agree.  
 

(38) Relief (b) in the present plaint, set out above, is for a declaration to the effect that the Gpc functioning since September 1961, was entitled to carry on and that defendants I to 21, appointed as members of the Gpc by Bakhshi Gurcharan Singh, should be restrained from working as members of the Gpc or interfering with the working of the former. The latter relief amounts in substance to a virtual removal of defendants 1 to 21 who had been appointed trustees of the Gpc and, in any event, are trustees de son tort. It may also be noticed in this context that the September Committee was dissolved in order to facilitate Bakshi Gurcharan Singh to nominate a committee as he pleased. It was in these circumstances that the above relief (b) was prayed for.

(39) The present claim is, therefore, hit by section 92 of the Code of Civil Procedure. Sanction not having been obtained as required by sections 92 and 93 of the Code of Civil Procedure, the present suit was not maintainable.

(40) The fourth preliminary objection to the maintainability of the suit is based upon the old section 42 (present 34) of the Specific Relief Act, the relevant portion of which reads as follows : "any person entitled to any .legal character, or to any 'right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief; Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

(41) It was urged by Mr. Gosain that an objection in the form as stated earlier was not raised at the earliest possible occasion. He relied in this connection upon the observations of the Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and others . Subba Rao J. (as his Lordship then was) declined to permit the appellant in that case to raise the plea for the first time in the Supreme Court that a suit for a mere declaration without asking for the consequential relief of possession was not maintainable. In view of the above observation, Mr. Ved Vyas stated that he would not be able to raise the contention for the first time here that a suit for a declaration without asking for possession also was had but he urged that on the facts stated in the plaint it was open to him to contend that the present plaintiffs, who were at best nothing more than mere worshippers or persons who are entitled to elect the members of the GPC., have no legal character to sue for a declaration within the meaning of section 42 of the Specific Relief Act. Such facts as have been alleged in the plaint-on the basis of which it is contended that the present plaintiffs have no legal character-are .not disputed. This is a pure question of law on which Mr. Ved Vyas addressed his arguments and which were replied to by learned counsel for the opposite side. The above observation of Subba Rao J. do not stand in the way of Mr. Ved Vyas raising such a contention.

(42) The expression "legal character" has been held to be synonymous with legal status. Mody J. has discussed this question at length in Major General Shanta Shamsher Jung Bahadur Rana v. Kamani Brothers Private .Ltd. and others . The learned Judge pointed out that the said expression "legal character" which occurs in section 42 of the Specific Relief Act and section 41 of the Indian Evidence Act had not been defined by those Acts; they had also not been the subject matter of any previous decision. It was held in that case that the managing director of a company was not entitled to any legal character within the meaning of section 42 of the Specific Relief Act.

 (43) Our attention has also been invited in this connection to Wajid Ail Shah v. Dianat-ul-Lah Beg (2nd 8 Allahabad 31) where Sir Petheram C.J observed as follows :-    "the plaintiff in this case cannot sue as one of the first class, because he has no "legal character" which is denied by any one : he only asserts his character as a Muhammadan, and that has not been questioned. Nor does he for himself assert a right as to any property, and by no act of the defendant has his right to any property been denied. The suit, therefore, does not come under the provisions of s. 42", etc.  

 (44) The present plaintiffs' right to worship at the Gurdwaras under the control of the Gpc and even to elect members of the Gpc, as members of the Sikh community living in Delhi, has not been denied. Yet the above character would not be an assertion of right to any property; by no act of the defendants in the suit has their right to any property been denied in the language of Petheram C.J.  
 

 (45) We do not see how the decision in Sat Narain Gurwala v. Hanuman Parshad and another (XLVII Plr 94) is of any assistance to the plaintiffs. In this case, the expression "legal character" was held to be wide enough to' include the right of franchise and of being elected to the Municipal Committee. It was a case of wrongful rejection of nomination papers to the Municipal Committee of Delhi.  
 

 (46) It seems to us that no declaration can be granted in favor of the present plaintiffs since they do not possess a legal character, which is a pre-requisite for granting a declaration under section 42 of the Specific Relief Act.  
 

 (47) In any view of the matter, therefore, the suit for declaration by the present plaintiffs is not maintainable.  
 

 (48) In the above view but for the FAOs which have been preferred against the decision by the trial court holding both the reference to arbitration and the award made by the first defendant illegal there would be really no need to go into the questions pertaining to the validity of the reference or the award. Since these questions have to be gone into in the two FAOs and also in the view that those questions have been fully argued-we will deal with them. But before doing so it is necessary to clear the ground for the said discussion by noticing a few objections taken by Mr. Ved Vyas that these questions should not be gone into.  
 

(49) Sadhu Singh and Suchet Singh had filed an application under section 14 of the Arbitration Act for a declaration calling upon Bakshi Gurcharan Singh to file the award into court so that objections may be filed to the said award. Two sets of objections were filed, one by the Shiromani Committee and the other by Sadhu Singh and Suchet Singh, the original plaintiffs 1 to 3 (Kuldip Singh, Indermohan Singh and Madan Singh) and Mr. Cyan Singh Vohra. Original plaintiffs I and 2, who had been nominated to the Committee by Bakhshi Gurcharan Singh and original plaintiff No. 3 (Madan Singh) withdrew from the suit. Sadhu Singh (R.W. I and D. 1 O.W. 3) and Suchet Singh (D. 10 W. 2 and RW.2) supported the April 1962 Committee when their statements were recorded. Mr. Cyan Singh Vohra accepted, towards the end of 1966, the Vice-President-ship of the April 1962 Committee though he subsequently gave up the said office. Mr. Tarkunde, learned counsel for the Shiromani Committee, suggested that if there was any invalidity attaching to the award by reason of the arbitrator having gone beyond his permissible limits the entire award need not be set aside but may be held invalid to the extent of the excess or invalidity because, in his submission, the interest of the Sikh community would be served by remitting the award back to him.

(50) Mr. Ved Vyas urged that because of the aforesaid acts and conduct of the objectors the objections to the award had thus been given up and hence the award need not be declared invalid. But the said contention of Mr. Ved Vyas does not seem to be even factually correct. The mere fact that Mr. Gyan Singh Vohra had accepted the position of Vice-President-ship of the April 1962 Committee (which he subsequently gave up) could not lead to the inference that he had given up his objections to the award. In fact he was himself examined as OW.4 in the arbitration proceedings and maintained his objections to the award. As long as there is even one objector to the award the objections to the award have to be gone into in the FAOs despite our finding that the suit is not maintainable. The Shriomani Committee had itself opposed the award tooth and nail; the fact that the Shiromani Committee now thinks differently about the award will not cure the illegality.

(51) The further contention of Mr. Ved Vyas that Bakshi Gurcharan Singh was not an arbitrator at all, that he did not make an award "deciding" anything and that he had only nominated members to the Gpc has nothing to commend it. Such an issue does not appear to have been specifically raised in the arbitration proceedings though issue No. 23 (to that effect) was raised in the suit. The reference to arbitration had expressly comprised "all disputes and differences in any court or otherwise." That was the ambit of the reference to the "arbitration by Bakhshi Gurcharan Singh." We find the same description of Bakhshi Gurcharan Singh as arbitrator in the two resolutions of the Gpc passed on 6th April 1962. Even the compromise which was submitted in the court of Mr. Wason mentioned that the differences had been referred to the "sole arbitration of Bakhshi Gurcharan Singh". In the award of Bakhshi Gurcharan Singh also he described himself as the "sole arbitrator"; the same was his stand throughout. Merely because he had been authorised to nominate members of the Gpc which did not entail the taking of evidence, it could not be contended that there was no reference to an "arbitrator" and that Bakhshi Gurcharan Singh was only a "referee".

(52) It is seen from the award (Ex. DW.I/12 dated 29th April 1962) that Bakhshi Gurcharan Singh had expressed the opinion that the Shiromani Committee should not have a 7/15th power of nomination because in his view that would make the Gpc a puppet dancing to the tune of the party in power in Amritsar, even though he conceded that the election should be conducted under the auspices of the Shiromani Committee, the expert body. He also considered that the ex parte judgment of Mr. Sekhon was obtained as a result of collusion and hence was not res judicata; it was palpably erroneous and not a guide to interpret the scope of Punjab Act 8 of 1925. He had also suggested that the rules should be changed in co-operation with the Shiromani Committee to attain the object of Panthic unity and solidarity.

(53) The point for consideration is whether all these observations and the appreciable reduction of the 7/15th power of nomination of the Shiromani Committee could be made behind the back of the Shiromani Committee without the Shiromani Committee being party to the reference to arbitration. The learned Additional District Judge found that the award was had on the ground that the Shiromani Committee was not a party to the reference even though it was interested in the subject matter of reference- Mr. Ved Vyas strenuously attacked this finding on the grounds that the Shiromani Committee was not a party interested in the reference and that even if it was interested what had been stated in the award with reference to the Shiromani Committee was only in the nature of a recommendation. We are unable to agree. The arbitrator considered that the Shiromani Committee should not have the 7/15th power of nomination and then proceeded to nominate 19 members including himself, with a power to co-opt two others later; he thus reduced the proportional number of members (even if they were to be not less than seven) to be nominated by the Shiromani Committee. The arbitrator had also expressed the hope that the Gpc would maintain its affiliation to the Shiromani Committee by accepting a fair nomination of three or four members, out of 21 members, to be nominated to the Gpc and that the elections should be conducted by the Shiromani Committee. It is also clear from the award (vide paragraph G) that the arbitrator clearly proceeded on the footing that he had been given the right, power and authority to change the rules and bye-laws; he had gone so far as to state that if there was anything in the award in excess of or in contravention of the existing rules the award shall prevail against the bye-laws which should be considered to have been amended and altered pro tanto. These statements in the award run counter to the contention of Mr. Ved Vyas that the arbitrator was only making certain recommendations for the future. It is plain that it was not possible in the light of the rules of the Gpc to have 21 members nor was it possible to reduce the term of the members of the. Gpc from 5 to 3 years-this could not be set right by merely providing for the enlargement of the term by another two years by means of. a 60% majority. These findings and observations were ex facie opposed to the constitution of the GPC.

(54) Mr. Ved Vyas next relied upon Rule 20 of the Bye-laws which enabled the rules being relaxed in consultation with the Shiromani Committee but no reliance on Rule 20 is possible on account of the qualified manner in which the Shiromani Committee had accepted the two resolutions of the Gpc passed on 6th April 1962. The resolution passed by the Shiromani Committee (vide OW.4/7 dated 22nd April 1967) reads as follows :- "after careful consideration it was resolved to approve the aforesaid resolution of Delhi Gurdwara Committee and agreement arrived at between the parties to the dispute accepting Bakhshi Gurcharan Singh as arbitrator, providing that no change shall be made in the rules and bye-laws of Gpc Delhi without the prior approval of Sgpc as provided.... under bye-laws and Rule 14 of Gpc Delhi Province."

  Rule 14 reads as follows :-    "these bye-laws shall not be varied or amended except by the vote of three-fourths of the members present in the meeting specially convened for the purpose after due notice provided that sanction of the Sgpc shall always be necessary for any change in the rules and bye-laws."  

 (55) The consent of the Shiromani Committee to the above resolution passed on 6th April 1962 was thus only conditional. It is common ground that Rule 14 has not been complied with.  
 

(56) A reading of the award shows that the position of the Shiromani Committee was intended to be affected and was in fact actually affected by the award. This was not possible without the Shiromani Committee itself being a party to the reference or in the view most favorable, at least consenting to it in unqualified terms. We, therefore, find ourselves in agreement with the Additional District Judge on this question. The above finding has the legal consequence of making the entire reference void from its inception; it would not be binding on even those who were parties because a void award cannot be subsequently ratified. Any contrary stand taken by the Shiromani Committee, through its counsel Mr. Tarkunde, at the hearing before us, could not convert an invalid award into a valid one.

(57) An even more fatal objection to the award is that Bakhshi Gurcharan Singh had appointed himself as an arbitrator. The decision in R. B. Pandit Sankata Prasad v. Jagapnath and others (AIR 1922 Oudh 276) relied upon by the trial court is exactly in point. In that case also the arbitrators had appointed themselves to a committee for managing property which was the subject matter of reference to arbitration. The argument put forward in that case that by appointing themselves the members of the committee they did not stand to derive any personal advantage was repelled.

(58) The Supreme Court held in A. K. Kraipak arid others v. Union of India and others (1969 Service Law Reporter 445) that even in the case of an administrative order it was against all canone of justice that a person, who is himself a candidate for a selection post, should sit in the Selection Board and that it would make no difference that he took no part in deliberations of the Board when his name was considered. Hagde J. observed that the dividing line between administrative power and quasi-judicial power was being gradually obliterated. The present is an even worse case where the arbitrator; who was asked to settle controversies and nominate members to the GPC., nominated himself also as one of the members. Bias or personal interest is per se sufficient to invalidate a judicial or quasijudicial decision. The fact that so much confidence was reposed in Bakhshi Gurcharan Singh and nobody would have thought of objecting to his serving on the committee would be hardly relevant. Our attention has not been drawn to any decided case which has gone the length of holding that despite an arbitrator appointing himself to a committee which he was asked to nominate by an award the award would still be valid.

(59) In the above view it is not really necessary to go into the other grounds of invalidity concerning the reference to arbitration but since they were argued, we shall discuss them also.

(60) It was contended by Mr. Gosain that since there was admittedly no personal service on Kuldip Singh of the meeting to take place on 6th April 1962 and he was also absent there was no valid meeting at all. The lower court has found as a fact that Shrimati Govind Kaur, the sister of Kuldip Singh, was served with the notice of the said meeting at 10 Am on 6th April 1962 for the meeting to take place at 8 P.M that very day and that previously also she had accepted similar notice on behalf of Kuldip Singh. Kuldip Singh is stated to have been working at Faridabad while he was living at Lajpat Nagar, New Delhi. The constitution provides only for eight F hours previous notice for an extraordinary meeting. So long as it is proved that the notice was served, the validity of the meeting cannot be questioned on the ground that the member, who had been served, could not attend the meeting for any personal reason or difficulty. The said meeting cannot, therefore, be said to be invalid.

(61) It was contended by Mr. Gyan Singh Vohra that the notice of the said meeting was vague and did not bring out the idea of either the Gpc being dissolved or the suit being withdrawn. No support for this contention could be got from the passages read from Shackleton's Law and Practice of Meetings Iii Edition at pages 25 to 30 or from Sardar Gulab Singh v. Punjab Zamindara Bank Ltd. Lyallpur (AIR 1940 Lahore 243). The latter was a case where the Articles of Association of a company had been amended by a special resolution without mentioning in the notice, as required by the Articles, that the question of amendment was to come up -for decision in the meeting. That was a meeting of the shareholders who were fairly large in number. In such a case it is obvious that those shareholders should have previous notice of the special resolution to be passed. Even in the case of companies the position of directors appears to be different. This distinction was brought out in Compagnie De Mavville v. Whitley (1896-1 Ch. 788). All the three Lord Justices, who wrote separate but concurring judgments) were clearly of the view that the notice of a Directors' meeting need not set out what business had to be transacted at the meeting; it would be enough if the directors are given notice when the meeting is to take place.

(62) It is worth recalling that the notice which had been signed by the President of the September Committee had definitely stated that the meeting was for the purpose of considering "the matters connected with the Gurdwaras and the suit". It would not have been practicable to state even in advance what the decision of the committee would be though on the previous day itself a reference to arbitration had been decided upon by the members others than Kuldip Singh who had signed it. In the present case, the 15 members of the Gpc were a. compact body who were fully aware of all the developments concerning such an important matter which they had been deliberating for quite some time. Mr. Wason had also granted an injunction against the members of the Gpc (the September Committee) as early as 1st September 1961 and the appeals against the said decision were also pending.

(63) Another invalidating circumstance urged by Mr. Gosain is that Kuldip Singh had not signed the reference to arbitration. The trial court relied upon his lawyer, Mr. Dhanbir Singh, having signed the compromise petition before Mr. Wason and having withdrawn the appeal which had been preferred by him in the court of Mr. Sharma. Mr. Dhanbir Singh was representing both Kuldip Singh and Indermohan Singh. The latter had signed the compromise himself, there was no need for his counsel to sign on his behalf. Kuldip Singh was defendant No. 23 in the suit before Mr. Wason. Mr. Dhanbir Singh had signed the Vakalatnama which was filed in the court of Mr. Wason where Kuldip Singh had been described as defendant No. 22 instead of 23; but it is clear that he meant to sign on behalf of Kuldip Singh. There is, however, no such defect so far as the appeal before Mr. Sharma was concerned.

(64) Mr. Vohra contended, relying upon Abdal Ghani and others v. Sirai-ud-din and others (AIR 1939 Lahore 154), that if some of the parties did not join in the reference to an arbitration out of court the same would not bind the persons who did not join but even those who joined. This decision was rendered prior to the Arbitration Act 1940 which contains section 24 enabling a court, when reference is to arbitration through court and one part could be separated from the rest of the subject matter of the suit to order the arbitrator to proceed so far as the parties joining in the application to make a reference. A Full Bench of the Punjab High Court in Firm Khetu Ram Bashamber Dass v. Kashmin Lal and another (1959 Plr 767) pointed out that in the case of reference to arbitration, though in a pending suit, without the intervention of court the subsequent acquiescence of a partner not signing the reference to arbitration would validate the award. Both Mr. Gosain and Mr. Vohra urged that the said observations were obiter-, besides in the case of partnership the principles of agency applied and hence were quite different from the present case. It seems to us that the above said observations would apply with even greater force to the present case where the members of the Gpc were referring disputes, on behalf of the Gpc, to the sole arbitration of Bakhshi Gurcharan Singh outside court. One of the members, probably on account of his absence, was unable to sign the reference and the compromise, but had been represented by his lawyer in the latter. Mr. Vohra also referred in this connection to the decision in Ram Harakh Singh v. S. Mumtaz Hussain and another (AIR 1949 Allahabad 679). This decision is to the effect that a reference to arbitration, which is void at its inception for want of consent of the interested party, cannot be validated by ratification subsequent to the award. "This case does not assist Mr. Vohra; Kuldip Singh's lawyer had signed the compromise before the award was made. Even Kuldip Singh had not taken any steps repudiating the reference before the award was made and he subsequently withdrew from the suit.

(65) In the result both the Regular First Appeals are allowed, the decree of the trial court is set aside and the suit is dismissed as not maintainable. The FAOs are dismissed, both the reference to arbitration as well as the award being illegal for the reasons mentioned earlier.

(66) Before taking leave of this case we have to record that having regard to the great public interest involved we endeavored to bring about a settlement between the contestants in this case but we did not meet with success. We have been unable to work out any solution, as Shri Tarkunde invited us to do, in the altered situation arising subsequently to the suit-chiefly because of the shifting attitudes of the parties. On the other hand. we feel that a solution to the disputes affecting such a large number of religious and charitable institutions could be attempted by court only in a properly framed suit under section 92 of the Code of Civil Procedure. If this is not done and the contestants do not resolve their differences a possible remedy may be to bring in the needed legislation so that the interests of the general public who are beneficiaries of these trusts can be protected.

(67) In order to avoid even more betimes than there is among the contestants we do not propose to make any order as to costs in any of these appeals.