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Kunhammad Makkaru Vs. Abdul Rahiman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1961CriLJ234
AppellantKunhammad Makkaru
RespondentAbdul Rahiman
Cases ReferredMatliai Jacob v. Ravivarman Thirupad
Excerpt:
- - in the order it is stated that the learned magistrate was satisfied from the report of the police that a dispute exists concerning the conduct of the chandanakudam festival in the mosque in mulavoor village, the parties were called upon to put in written statements of their respective claims as to the fact of the management of the mosque. is the proper section applicable to the facts of this case, where a dispute is really as regards the possession of a temple or a mosque no doubt, section 145 would be applicable, but in a case like this where the dispute is not so much about the right to possession of the mosque as the right to perform the festival there, i am of opinion that section 147 is the proper section to be used by the magistrate......145 would be applicable, but in a case like this where the dispute is not so much about the right to possession of the mosque as the right to perform the festival there, i am of opinion that section 147 is the proper section to be used by the magistrate.5. another question that arises is whether the order of attachment and the appointment of the receiver is with or without jurisdiction. section 147 does not expressly authorise either the attachment of property or the appointment of a receiver, but the learned counsel for the respondents would contend that even in a case coming under section 147, cri. p.c., there could be attachment of the properties.it is pointed out that the provision in section 147 to the effect that the courts 'shall thereafter enquire into the matter in the.....
Judgment:
ORDER

P. Govinda Menon, J.

1. This revision petition is filed against the order passed by the Executive First Class Magistrate, Muvattupuzha in M. C. 13 of 1980 under Section 145,Cri. P.C. In the order it is stated that the learned Magistrate was satisfied from the report of the police that a dispute exists concerning the conduct of the Chandanakudam Festival in the mosque in Mulavoor Village, The parties were called upon to put in written statements of their respective claims as to the fact of the management of the mosque.

The learned Magistrate also passed orders attaching the mosque and its premises under proviso 3 to Sub-section (4) of Section 145, Cri. P.C. and appointing the Deputy Tahsildar of Muvattupuzha as the receiver of the mosque for the conduct of the festival. This order is challenged as one being passed without jurisdiction.

2. A reading of the relevant papers in this case would show that the dispute really relates to the right to perform certain services in the mosque and it is argued by the petitioner's learned Counsel that1 this is not a case which could have been dealt with under Section 145 Cri P.C. and if at all any action had to be taken it ought to have been only under Section 147 Cri. P.C. because there was really no claim for possession of the mosque, but only the right to perform some services in the mosque. The respondent's counsel on the other hand argues that Section 147 applies to a case of dispute regarding the right of user of land or water and the right to perform services in a mosque is not such a right of user of land.

3. The Full Bench of the Calcutta High Court in Dhirendra Nath Das v. Hrishikesh Mukherjee : AIR1951Cal93 has revealed the decisions of the various High Courts in India on this subject and overruling Guiram Ghosal v. Lal Behari Das ILR 37 Cal 578 and Ram Saran v. Raghu Nandan ILR 38 Cal 387 came to the conclusion that a dispute as to the right of worship in a temple or other place of worship necessarily involves a dispute as to the right of user of land within the meaning of that term in Section 147, Cri. P.C.

The Madras High Court has also consistently taken the view that a right to worship in a mosque or to officiate as Kazi therein or to perform a puja comes within tire operation of Section 147, Reference may be made to Muhammad Musaliar v. Kunji Chek Musaliar ILR 11 Mad 323, Kader Batch v. Kader Batcha Rowthan ILR 29 Mad 237, Chidambara v. Sengoda 27 Mad LJ 587: AIR 1915 Mad 84, Sinnaswami Chetti v. Palani Goundan AIR 1925 Mad 779 and Velappa Gounden v. Ramaswami Goundan AIR 1938 Mad 537.

The view similar to the Madras view has been taken by the Allahabad High Court in the case in Daya Ram v Emperor AIR 1930 All 452 and by the Bombay High Court in In re Pandurang Govind ILR 24 Bom 527.

The Travancore High Court in Thomas v. Skaria Kathanar 31 Trav LJ 1223 and the Cochin High Court in Ahmrnadu Kunju v. Ammu Muharnmed 5 Cochin 507 has adopted the same view and this has been followed in Kochitti Chacko v. Markose Kathanar Joseph Kathanar 1952 Ker LT 361 : AIR 1952 Trav-Co 531.

The only decision brought to my notice which takes a contrary view is the decision in Abdul Majid Shah v. Muharnmed Saheb AzizuJdin AIR 1941 Nag 171, where it was stated that though the main dispute is as regards the right to receive the offerings, it centres round and depends upon the right to sit in a particular spot and it relates either to the possession of the land or to its use and therefore the order of the Magistrate whether regarded as one made under Section 145 or under Section 147 is right.

4. Practically all the High Courts in India are now of the view that a dispute relating to the right of performance of service in a place of public worship comes properly within the purview of Section 147, Cri. P.C., and I am in respectful agreement with this view and I hold that Section 147, Cri. P.C. is the proper section applicable to the facts of this case, Where a dispute is really as regards the possession of a temple or a mosque no doubt, Section 145 would be applicable, but in a case like this where the dispute is not so much about the right to possession of the mosque as the right to perform the festival there, I am of opinion that Section 147 is the proper section to be used by the Magistrate.

5. Another question that arises is whether the order of attachment and the appointment of the receiver is with or without jurisdiction. Section 147 does not expressly authorise either the attachment of property or the appointment of a receiver, but the learned Counsel for the respondents would contend that even in a case coming under Section 147, Cri. P.C., there could be attachment of the properties.

It is pointed out that the provision in Section 147 to the effect that the courts 'shall thereafter enquire into the matter in the manner provided under Section 145 and the provisions of than section shall, as far as may be, be applicable in the case of such enquiry' must be interpreted as enabling the court to use all the powers that the court has under Section 145. Proviso 3 to el. (4) of Section 145 which authorises attachment of property and appointment of a receiver is claimed to be a provision whose use is therefore authorised by Section 147. I do not agree.

6. In Rahim Baksha v. Abdul Wahad ILR (1948) 1 Cal. 374 the question whether attachment of property could be made and a receiver appointed in. proceedings under Section 147 when the Magistrate finds it difficult to come to a conclusion one way or the other as regards the right claimed by the parties, arose for consideration and it was held that the Magistrate had no jurisdiction either to attach the property or to appoint a receiver. The learned Judge says at page 375:

Now in proceedings under Section 147, Cri. P.C. there is no conflict, regarding the question of possession. This section deals with an alleged right of user of any land or water.... An attachment means dispossession and where there is no dispute regarding possession I cannot see how a court can dispossess the party which is admittedly in possession of immovable property.

The same question was considered by the Madras High Court in Chelliah Pillai v. Ramiah Thevar AIR 1942 Mad 77, If possession of immovable property is not within the scope of the provisions under Section 147, it is difficult to conceive how there could be either attachment of immovable property or appointment of a receiver.

Reference may also be made to the decision in Matliai Jacob v. Ravivarman Thirupad 1953 Ker LT 133 : AIR 1953 Trav-Co 202 where the question whether the court was competent to pass an interlocutory order was considered. It is stated that:

Section 147 does not expressly authorise either the attachment of property or the appointment of a receiver. As regards the direction to permit the second petitioner to exercise the right of fishing, Clause (2) of Section 147 authorises the court to pass an order. That however can be done only after and as a result of the enquiry provided in Clause (1) and in the event of the court finding that the right alleged exists. No interim or interlocutory order is contemplated by the section.

7. It therefore seems to me that the order of the learned Magistrate is without jurisdiction and interference is called for. The revision petition is allowed. The case is remanded to the learned Magistrate to decide if a dispute likely to cause a breach of the peace still exists and whether he shoud initiate fresh proceedings under Section 147, Cri. P.C.


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