JUDGMENT

DESAI, J.:—Whether a religious and or charitable institution situated in village Mahal Khurd, Tehsil Barnala of Sangrur District is a Sikh Gurdwara within the meaning of the expression in The Sikh Gurdwaras Act, 1925 (Act for short) is the subject-matter of controversy between the parties in this appeal by special leave.

2. 1984 about 56 persons residing in village Mahal Khurd and professing Sikh religion made an application to the Government of Punjab on December 23, 1960 requesting the Government to declare the institution more particularly described in the application as a Sikh Gurudwara. This application was published in, the Official Gazette whereupon Mahant Kirpa Ram, respondent No. 1 (respondent for short) filed objections under Section 8 of the Act contending that the institution was not a Sikh Gurudwara and that he was entitled to raise that contention because he was the holder of hereditary office of mahant of the institution.

3. The application was forwarded under Section 14 to the Sikh Gurdwara Tribunal set up under the Act. Upon rival contentions the Tribunal framed two issues as under:

"1. Is the petitioner a hereditary office holder of the Gurdwara?

2. Is the Gurdwara in dispute a Sikh Gurdwara?"

4. The Tribunal by its judgment dated January 21, 1964 answered Issue No. 1 in favour of the respondent holding that he was a hereditary holder of the office of mahant of the institution. On Issue No. 2, the Tribunal held that the institution is a Sikh Gurdwara and is governed by the Act.

5. The respondent preferred F.A.O. No. 59 of 1964 in the High Court of Punjab and Haryana at Chandigarh. A Division Bench of the High Court held that the institution was set up by Gulabdas for commemorating the memory of his Guru named Jad Guru. The High Court further held that the land on which the institution was set up with the grant of Muafi had been donated by a Muslim ruler named Raj Kala of Raj Kot in favour of Mahant Gulabdas, It was also held that the succession to the office of mahant is from Guru to Chela. After referring to various entries in the land records, it was held that way back in 1861, the institution was not only serving as a Gurdwara for the worship of Granth Saheb but was also used as a Dera or lodging house for Sadhus or Faqirs of the Udasi Sect and that there was a duality of faiths in the institution. After taking all the aspects into consideration, the High Court concluded that the institution in question was catering to the religious views and, beliefs of bow the sects amongst the local population and that therefore, the Tribunal was in error in declaring that it was a Sikh Gurdwara which would permit one of the communities to appropriate the institution to its exclusive use and to deprive the other community or sect from the dual use to which the institution has been put ever since it was founded or established Accordingly, the High Court allowed the appeal and set aside the declaration made by the Tribunal.

6. Original applicants moved the High Court for a certificate under Art. 133 (1) (a) and (c) of the Constitution which was numbered as S. C. A. No. 96 of 1970. The High Court on receipt of a report as a result of enquiry directed by it, by its order dated January 8, 1971 rejected the application for certificate both under Article 133 (1) (a) and (c), Thereupon the original applicants filed these two appeals by special leave: one against the decision of the High Court reversing the decision of the Tribunal and another against the order of the High Court rejecting the application for certificate.

7. Mt. M. N. Phadke learned counsel who appeared for the appellant urged that if on evidence the appellants (original petitioners) are in a position to show that the institution was established for use by Sikhs for the purpose of public worship and was used for such worship by Sikhs. before and at the time of presentation of the petition under sub-section (1) of Section 7. the institution would be a Sikh Gurdwa