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Gurudwara Shri Guru Singh Sabha Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 198 of 1982
Judge
Reported in22(1982)DLT80
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145 and 146(2)
AppellantGurudwara Shri Guru Singh Sabha
RespondentThe State and ors.
Advocates: D.R. Sethi and; R.D. Mathur, Advs
Cases ReferredBhogav v. Emperor
Excerpt:
.....magistrate with powers to deal with a situation like this. section 145 being a preventive provision, a liberalinterpretation will have to be given to it as well as to section 146 which hasto be considered as a part of or a complement of it. conversely, thereforee, it may be well argued that if nishansahib is allowed to remain there it may serve as a constant provocation tothe opposite party who may try to remove it endangering the peace andpublic tranquility in the process. it would be in the best interests ofbtoh the parties as being conducive to maintenance of public peace andorder......of any of the parties. looked at from thisangle, there can be little doubt that removal of nishan sahib from its presentplace to some other holy place, for instance, a gurdwara, is not only desirable but imperative. indeed, a veiled threat was held out by the learnedcounsel for the petitioner that in case nishan sahib is removed from theland in dispute, it may infuriate and enrage the sikh community and lead toa hindu-sikh riot. conversely, thereforee, it may be well argued that if nishansahib is allowed to remain there it may serve as a constant provocation tothe opposite party who may try to remove it endangering the peace andpublic tranquility in the process. surely, a large posse of police force cannotbe expected to be deployed for an indefinite period. hence, the onlyadvisable.....
Judgment:

J.D. Jain, J.

(1) A plot of land measuring about 6000 sq. yards situateat G Block opposite Satya Service Station, Hari Nagar, Delhi, belonged toShri Bans Gopal deceased father of the Rajesh Gopal etc., respondent No. 3.On the morning of 9/04/1982, a serious dispute took place between the petitioner, Shri Guru Singh Sabha, which is a registered body, with S. S.Mann as its President, and respondent No. 3 with regard to possession of theland. The Station House Officer, Police Station Janak Puri, on receipt of awireless message about the dispute reached the spot along with some membersof the staff. He found that about 150 persons including ladies and childrenbelonging to Sikh Community were raising a wall on the plot in dispute.Some 'Qanats' had been filtted along the plot and an improvised small roomhad also been built. One 'Nishan Sahib' i.e. a flag used as a holy symbolindicating the existence of a Sikh Gurudwara was also found at the spot.Rajesh Gopal, respondent No. 3, too was there.

(2) On enquiry it transpired that there was a serious dispute withregard to the possession of the plot in as much as respondent No. 3 claimed tohave been in possession of the plot as the legal heir of Bans Gopal while the petitioner asserted that they had been using the plot since 1956 as it had beendonated by the late Shri Bans Gopal, who was a Sikh devout and used tovisit Gurdwara Guru Singh Sabha situated just close to it. The petitioneralso asserted that Bans Gopal had executed a Will dated 10/01/1979bequeathing the said property to the petitioner and appointing one GianiRam Singh as the sole Executor of the Will. Finding that there was imminentdanger of breach of peace, the Sho drew up a Kalendra and submitted thesame to the S.D.M , Punjabi Bagh, for initiation of proceedings under Section 145 of the Code of Criminal Procedure (for short 'the Code'). On receipt ofthe Kalendra the S.D.M. personally inspected the spot on 12/04/1982and on 13/04/1982 he drew up a preliminary order under Section 145(1) of the Code. Both the parties were required to appear on 30/04/1982 and file their written statements, documents and list of witnesses etc.on which they intend to rely with regard to the fact of actual possession ofthe subject of dispute. Respondent No. 3 moved an application on the sameday for attachment of the property in dispute under Section 146 of the Code.A report was called from the S. H. O. who, after giving a resume of theincident, reported that the atmosphere was tense and it could flare up into a indu Sikh roit any moment. So, considering that the case was one ofemergency and both the parties were inclined to disturb the status quo, thelearned S.D M. passed an order of attachment of the property in dispute withimmediate effect He then directed the S.H.O. Janakpuri to take possessionof the said plot but he should take care that the holy 'Garanth Sahib' andthe holy 'Nishan Sahib' along with other articles of religious nature whichexisted on the disputed plot be shifted to the nearby Gurudwara or someother convenient place in a manner which may not hurt the religious sentiments of the parties.

(3) The petitioner went in revision against the said order but it wasdismissed by the learned Additional Judge vide order dated 17/04/1982 onthe short ground that the impugned order being of inter-locutory nature, norevision was competent against the same under Section 397(2) of the Code.Reliance inter alias was placed by him on Mathura Lal v. BhanwarLal andothers : 1980CriLJ1 wherein it was held that the Magistrate's Jurisdiction does not come to an end if an attachment is made on the ground ofemergency under Section 146.

(4) The petitioner now seeks to invoke the inherent power of thisCourt under Section 482 of the code for quashing the direction with regard tothe removal of 'Nishan Sahib' from the plot in question only. It appearsthat Shri Guru Garanth Sahib and other religious articles, if any, existing onthe plot have already been removed in compliance with the impugned order.Indeed, it was so stated by the learned counsel for the State as well as respondent No. 3.

(5) Evidently, the controversy in this petition lies in a narrow compass.The principle submission made by the learned counsel for the petitioneris that the learned S.D.M. has no jurisdiction to make any order or directionwith regard to the removal of movable property existing on the land in asmuch as Section 145 is designed to prevent breach of public peace arisingfrom a dispute relating to immovable property and for the purpose of thissection expression land' or 'water' has been defined in Sub-section (2) there of as including buildings, markets, fisheries, crops or other produce of land,and the rents or profits of any such property. Thus, according to him, noproceedings can be taken or an order made by the Magistrate with regard to'Nishan Sahib' which does not fall in any of the above categories. He seeksto fortify his argument by alluding to Sub-section (8) of Section 145 whichreads as under :Section 145(8),

'If the Magistrate is of opinion that any crop or other produceof the property, the subject of dispute in a proceeding under thissection pending before him, is subject to speedy and natural decay, hemay make an order for the proper custody or sale of such property,and, upon the completion of the inquiry, shall make such order for thedisposal of such property, or the sale-proceeds thereof, as he thinks fit.'

Thus, the argument advanced precisely is that an order with regard to propercustody or sale can be made only with respect to the articles mentioned inSub-section (8) and the S.D M., thereforee, fell into a grave error in directingthe removal of 'Nishan Sahib' which by no stretch of reasoning could betermed as land' or immovable property.

(6) On a mere juxta position of Sub-section (8) of Section 145 andSection 146 of the Code, it becomes clear that the provisions contained inthese two sections are quite independent of each other. Section 145, as itstands after its amendment in 1973, does not provide for attachment of theproperty which may be the subject-matter of dispute. So, recourse can betaken to Sub-section (8) thereof for proper custody or disposal of any crop orother produce of the property which is subject of dispute and is subject tospeedy and natural decay, irrespective of whether an attachment order hasbeen made in terms of Section 146 or not, having regard to the exigencies ofthe situation. However, the object of attachment under Section 146 is quitedistinct viz. to keep the property in custodia legis so as to prevent the contesting parties from creating a breach of peace in their attempt to obtain actualpossession of the property. In other words, the principal object of effectingattachment is preservation of peace and not determination of rights and titleof the parties. As a natural corollary, thereforee, while effecting attachmentof land or other property which is subject of dispute even movable properties which exist on or are included in the land/immovable property sought tobe attached would also be covered by the order of attachment and theMagistrate will have jurisdiction to pass a proper order in respect thereofunder Section 146. In this view of the matter, I am fortified by a numberof reported decisions.

(7) In Prem Kaur and anothor v. Benarsi Dm AIR 1933 Lah 409there was a dispute concerning the Oil Mills belonging to the respondenttherein. After adverting to the meaning of expression land' and 'water' asexplained is Section 145 of the Code, Bhide, J. observed that :

'MOVEABLEproperty as such does not ordinarily come within thepurview of S. 145 unless it is in the shape of crops or other produceof land, or rents and profits of the property in dispute. But wherethe dispute relates not to the mere building or structure itself but alsoto the valuable property inside and there is a state of emergency theMagistrate can order the police to take charge till decision of case of themoveables also along with the building which contains them.'

Reliance was placed by the learned Judge in this context on an earlierdecision of the High Court of Madras in K. Kochunny alias MannaraghniElaya Nair v. P. 0. Manavikrama Rajah Amyal (1912) 13 Crl. Law Jou 222, in which an elephant was attached along with the forest land in thecourse of proceedings under Section 145. It was held therein that the attachment of elephant was not legal but at the same time the elephant being onthe premises to be attached, the officer attaching the forest was entitled to takeit temporary in its custody.

(8) The same view has been expressed by the Allahabad and Jammu& Kashmir High Courts. In Narsingh Padam Saran Shah v. Mt. SuraiKishore. Devi : AIR1951All826 the property in dispute in the proceedings under Section 145 of the Code included movable properties in theshape of cash, jewellery and other articles and live stock and immvoableproperties such as a house and land in some villages. It was heldthat the movable properties which had been attached along with other properties locked up in the building could not be deemed to be entirely divorcedfrom the Rani's house of which attachment was ordered and if moveableproperty is included within immoveable property, the attachment of thelatter kind of property under the provisions of Section 145 would not renderthe incidental attachment of moveable invalid or bad in law for, it wouldprima facie belong to the person in possession of the immovable properties.

(9) In Sidiq Khan v. Gulam Qadir Khan AIR 1963 J & K 2 a shopwas attached under Section 145 along with the goods lying therein and the order was upheld by the High Court in view of the fore-going principle.

(10) The correct position, thereforee, which crystallises from theforegoing authorities and the view expressed by me above would be that adistinction has to be drawn in respect of two categories of cases while theMagistrate acting under Section 145 of the Code is not competent to attachmovable property as such he will have jurisdiction to do so if movableproperty form part of immovable property or is included therein. Suchattachment of movable property will in reality be incidental to the attachment of immovable property and it cannot be treated as a distinct or separateattachment from that of immovable property.

(11) In this view of the matter, thereforee, there can be no escape from the conclusion that any thing including the improvised room, Guru GranthSahib, Nishan Sahib and other religious articles, if any, of Sikh faith whichwere found on the land in dispute will fall within the ambit of attachmentorder. Needless to say that what the learned S.D.M. is investigating is thefact of possession over land and since the dispute regarding Nishan Sahib inthe instant case is inextricable tied up with the possession over land the orderof attachment read as a whole will relate to the dispute between the partiesregarding possession of land and it cannot be dissociated there from.

(12) Reliance has been placed by the learned counsel for the petitioner in support of his foregoing contention Bhogav v. Emperor, 1913 (14) Crl. Law Jou 138, and Mahmood Beg and another v.Ehsan Beg, (AIR1941 Oudh 515). However both these authorities are distinguishable onfacts as well as purport of the orders made therein. In the former, the petitioner had made some tharras on common land in the village and theMagistrate feeling that there was likelihood of a breach of the peace haddirected removal of those tharras. So, it was held that under Section 145 of the Code the Magistrate had no power to remove the super-structure onthe disputed land and all that he could do was to maintain possession afterdue inquiry in strict compliance with these provisions. Surely, the impugned order cannot be construed as an order of removal of Nishan Sahib simpli-citer and, as already observed, it will have to be treated as an intergral partof the order of attachment of land. So far as Oudh case is concerned,suffice it to remark that the application made by the petitioner therein wasconfined to the stock of medicines in the shop while the police report coveredthe entire property including the building and the shop. It was in thosecircumstances that it was not considered feasible to pass an order of attachment of the goods alone under Section 145 of the Gode. Hence, these authorities are of no assistance to the petitioner.

(13) Faced with this situation, the learned counsel, for the petitionerhas made a valiant effort to convass that at any rate there is no good groundfor removal of Nishan Sahib, even if it be deemed to have been attachedalong with the land especially when the whole of the plot of land has sincebeen enclosed by barbed wire fencing.On the contrary, the learned counsel for the State has urged that afew battalions of police including the Central Reserve Police had to be deployed to guard Nishan Sahib and ward off the danger of any untowardincident which may lead to a breach of peace. He has emphasized that thecontinued existence of Nishan Sahib on the land in dispute will be a constantsource of provocation to any of the parties to disturb peace and it is notat all possible for the State to keep a large posse of police force deployedtill the decision of the dispute. Thus, occording to him, as a precautionarymeasure and by way of an ad interim arrangement, Nishan Sahib is soughtto be removed from the place where it is fluttering at present. On a dispassionate consideration of the matter. I find considerable force in this argument. Indeed Sub-section (2) of Section 146 is intended to arm the Magistrate with powers to deal with a situation like this. It runs as under :Section 146(2)'When the Magistrate attaches the subject of dispute, he may, ifno receiver in relation to such subject of dispute has been appointedby any Civil Court, make such arrengements as he considers proper forlooking after the properly or if he thinks fit, appoint a receiver thereof,who shall have, subject to the control of the Magistrate, all the powersof a receiver appoined under the Code of Civil Procedure, 1908 (5 of1908). On a bare reading of this Sub-section, there can be no shadow ofdoubt that once the attachment had been affected, the Magistrate is vestedwith the power to make orders respecting the management and control ofthe property during the period of attachment. He may appoint a receiverthereof if the situation so warrants or he may take any other step necessaryfor and conducive to the maintenance of peace and public order. What stepsare necessary for or conducive to the maintenance of public peace willdepend on the peculiar facts and circumstances of each case and no hard andfast rules can be laid down. Indeed) such orders will be incidental to andconsequential in nature and they will be devised to subserve the main objectof attaching the property. Section 145 being a preventive provision, a liberalinterpretation will have to be given to it as well as to Section 146 which hasto be considered as a part of or a complement of it. As has been observedabove, the object of attachment is to keep the property in custodia legis so asto prevent the contesting parties from creating the breach of the peace intheir attempt to obtain actual possession of the property. Attachmentmeans seizure by legal process and it amounts to dispossession of all theparties to the proceedings and actual taking possession of the property attached by the Magistrate. Attachment under Section 146 is not the samething as an attachment under the Code of Civil Procedure which is only astep towards the eventual sale of property by auction. Under Section 146 mere pasing of an order of attachment on paper is not enough and efiectivesteps are necessary and even imperative for preventing the likelihood of abreach of the peace at the hands of any of the parties. Looked at from thisangle, there can be little doubt that removal of Nishan Sahib from its presentplace to some other holy place, for instance, a Gurdwara, is not only desirable but imperative. Indeed, a veiled threat was held out by the learnedcounsel for the petitioner that in case Nishan Sahib is removed from theland in dispute, it may infuriate and enrage the Sikh community and lead toa Hindu-Sikh riot. Conversely, thereforee, it may be well argued that if NishanSahib is allowed to remain there it may serve as a constant provocation tothe opposite party who may try to remove it endangering the peace andpublic tranquility in the process. Surely, a large posse of police force cannotbe expected to be deployed for an indefinite period. Hence, the onlyadvisable course, as has been found by the learned S.D.M, is to remove NishanSahib till the conclusion of the proceedings under Section 145 or the verdictof the civil court, as the case may be. It would be in the best interests ofbtoh the parties as being conducive to maintenance of public peace andorder.

(14) As a result, I find no merit in this petition. It is accordinglydismissed.


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