1. This appeal is directed against the order of the Sikh Gurdwaras Judicial Commission, Amritsar, dated 22nd Sept. 1973, whereby the objections field on behalf of the appellant to the award by the Arbitration were dismissed.
2. The respondent, filed a petition on 26th May, 1971, against the appellant Udham Singh under S. 142 of the Sikh Gurdwaras Act, 1925, on various grounds of malfeasance, misfeasance, neglect of duty, breach of trust, etc., and prayed that he be ordered to pay Rs. 1,36,009/- to them for the benefit of Gurdwara Panchayati Sri Guru Arjan Dev along with damages of RS. 10,000/- by way of interest and that future interest be also allowed from the date of the petition. It was further prayed that the respondent in the petition, i.e., the present appellant, be removed from the membership of the said committee of management and, consequently, from the office of Presidentship and he be further disqualified to become such member of any committee of management of any notified Sikh Gurdwara or the Board for five years, During the pendency of that petition, on 23 Dec. 1972, the parties appointed Shri Ganga Singh, Manager of Shri Darbar Sahib. Amritsar, as an arbitrator and requested the Judicial Commission that the matter in dispute Commission that the matter in dispute be referred to the said arbitrator for decision. They also agree that the arbitrator shall have the right to go through the evidence recorded already in the case and himself record in the case and himself record the evidence adduced before him. Consequently, the case was referred to the said arbitrator who made his award on 22nd Feb. 1973 and filed it before the Judicial Commission on 27th Feb. 1973. On the filing of the said award, objections were filed on behalf of both the parties. On the pleadings of the parties, the learned judicial Commission framed the following issues :--
(1) Whether the matter in dispute could not be referred to arbitration as alleged in para No. 3 of the objections by the respondent ORP.
(2) Whether the award is liable to be set aside on the grounds mentioned in para No.3(IV) cls. (a to f) of the objection petition? OPP.
(3) Whether the award is liable to be modified as alleged in the objections filed by the petitioner? OPP.
The parties were given opportunity to adduce their evidence in support of rebuttal of their objections. The appellant produced the arbitrator as his witness and no other evidence was produced. All the three issues were decided against the appellant and consequently, the objections were dismissed. Dissatisfied with the same, Sardar Udham Singh has field this appeal.
3. Learned counsel for the appellant contended that the proceedings before the Sikh Gurdwara Judicial Commission were taken under Section 142 of the Sikh Gurdwaras Act which is a Tribunal having special jurisdiction. According to the learned counsel it could not be said to be a dispute as such between the parties which could be referred to the arbitrator under the Arbitration Act as contemplated by Section 21 thereof. Ac a matter of fact. Argued the learned counsel, the Judicial Commission was a Tribunal vested with special jurisdiction and it alone could go into the allegations of malfeasance, misfeasance. The appointment of the arbitrator in the present case was beyond the scope of the Act and thus without jurisdiction. Though no such objection, as such, was ever taken on behalf of the appellant, either before he Judicial Commission or in the grounds of appeal in this court, but since this is a pure question, of law and goes to the root of the case, the same was allowed to be argued in this court.
4. Section 21 of the Arbitration Act provides that where in any suit all the parties interested agree that any matter in difference between them in the suit be referred to arbitration they may at any time before judgment is pronounced apply in writing to the Court for an order of reference. From the provisions of Section 142 of the Sikh Gurdwaras Act it is quite evident that there is no dispute as such or any matter in difference between the parties as such which may be adjudicated upon by the Judicial Commission. The marginal note therein. i.e. Sec 142, provides for the right of the interested persons to complain to the Commission in respect of misfeasance, etc. By virtue of the provisions of Section 142, the power to enquire into these allegations has been given to the Judicial Commission which is appointed under Section 70 of the Sikh Gurdwaras Act. Though Section 76 of the Sikh Gurdwaras vides that the jurisdiction and the provides that the jurisdiction and the procedure of the Commission will be the same as that of a Court under the Civil P. C. but it cannot be held that it is a court within meaning of clause (c) of Section 2 of the Arbitration Act. 1940: which is to the following effect :--
'Court means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not except for the purpose of arbitration proceedings under Section 21, include a Small Cause Court'.
Thus, taking into consideration the relevant provisions of the Sikh Gurdwaras Act and the Arbitration Act the proceedings under Sec 142 of the Sikh Gurdwaras Act are not a suit and are only in the nature of a complaint made to the Commission to enquire in to the alleged malfeasance, misfeasance, breach of trust, etc. and hence not a dispute as contemplated by Sec 21 of the Arbitration Act. It being a case of special jurisdiction which vested in the Sikh Gurdwaras Judicial Commission alone, which u/s 70 of the Act consists of three members, the matter could not be referred to the sole arbitrator by the parties concerned. Therefore, I am of the firm opinion that the appointment of the arbitrator was without any jurisdiction and the arbitrator could not go into the matter. In this view of the matter, no other question rises for determination not do I find any force in the objections raised to the award as such. Consequently, the appeal is liable to succeed on this point alone and I accordingly, set aside the award and remand the case to the Sikh Gurdwaras Judicial Commission, Amritsar for deciding the petition under Section 142 ibid on merits in accordance with law. However, it is made clear that the evidence recorded by the Commission itself and then recorded by the arbitrator will be treated as the evidence in this petition. However one opportunity may be given to both the parties to lead any other evidence in support of their case before the judicial Commission.
5. The parties, through their counsel, are directed to appear before the Judicial Commission on 14-3-1983. However, there will be no order as to costs. The records of the case be sent back forthwith.
6. Appeal allowed.