Jammu & Kashmir High Court - Srinagar Bench
Idara Auqaf Jamia Masjid Magam vs Ssp And Others on 8 March, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No.39/2018
MP No.01/2018
Date of order:08.03.2018
Idara Auqaf Jamia Masjid Magam Vs. SSP Budgam and others
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Appearance:
For the Petitioner(s) : Mr. S. R. Hussain, Adv.
For the Respondent(s) : Mr. M. A. Beigh, AAG
Mr. Javed Iqbal, Adv Mr. Malik Shabir, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. By the instant petition, order dated 24.01.2018, passed by the Court of learned Judicial Magistrate, 1st Class (Sub Judge), Chadoora, is sought to be quashed by invoking powers under Section 561-A Cr. P. C.
2. Dispute between two groups regarding management of mosque situated at Magam has given rise to apprehension of breach of peace. Noticing the same, Executive Magistrate 1st Class (Tehsildar), Magam, on 6th January, 2018, has issued a notice asking seven persons which include Mohammad Ibrahim Mir who is the Chairman, Idara Auqaf Jamia Masjid, Magam and also Mohammad Akbar Mir who is the President of Anjuman Sharai Shia, Magam, to submit their objections. Then again same 561-A No.39/2018 Page 1 of 8 Magistrate has issued another notice on 13.01.2018 asking the parties to submit their respective objections.
3. The proceedings initiated by the Executive Magistrate 1 st Class (Tehsildar), Magam, have been challenged by medium of a separate petition bearing 561-A No.22/2018. Vide interim direction dated 23.01.2018 passed thereon, operation of two notices dated 6th January, 2018 and 13th January, 2018, issued by Executive Magistrate, was stayed.
4. SHO, P/S Magam, through PO Magam submitted an application under Section 145 Cr. P. C before the Court of Chief Judicial Magistrate, Budgam, seeking attachment of the disputed property alleging therein that two factions of Shia Community, Anjuman Sherian Shian and Local Auqaf Committee are laying rival claims regarding possession and use of newly constructed mosque existing on survey No.1393 situated at Magam Market, Jamia Mohalla, Magam. The dispute between the two factions concerning land and the mosque standing thereon is likely to result in breach of peace. Two FIRs were registered against the members of said two fractions which suggest that that the situation prevalent is serious and it is apprehended that their actions may endanger peace and tranquility. It is further mentioned therein that prohibitory orders were issued in terms of Section 144 Cr. P. C but same could not bring the situation under control. Finally, it has been prayed that the land and the mosque built thereon may be kept under attachment. Along with application, reports of Police Station, Magam, and Tehsildar, Magam were also submitted.
5. The application has been transferred to the Court of learned Judicial Magistrate 1st Class (Sub Judge), Chadoora, who vide his order dated 561-A No.39/2018 Page 2 of 8 24.01.2018 has issued notices to both fractions asking them to file their respective written statements and has directed the disputed property to remain attached, SDPO concerned has been asked to take over possession which he has. Accordingly, mosque has been locked.
6. Aggrieved by the order dated 24.01.2018, instant petition has been filed seeking quashment of the entire proceedings initiated by learned Judicial Magistrate.
7. While hearing the arguments initially on 06.02.2018, matter was directed to be listed on 12th February, 2018. On 12th February, 2018, in view of sensitivity involved in the matter, for exploring possibility of amicable settlement, it was suggested to the learned counsel for the parties that at the first instance, Chairman, Idara Auqaf Jamia Masjid, Magam, and President, Anjumani Sherian Shian, Magam, will have a sitting to be assisted by two persons of their choice and after a break of five days, they will appear before the Court with their respective suggestions for amicable settlement which effort did not fructify, therefore, matter was heard.
8. The first contention of learned counsel for the petitioner is that Section 145 Cr. P. C is not applicable because the proceedings under Section 145 Cr. P. C can be initiated when there is a dispute of possession regarding land or water whereas dispute between the parties pertains to a right of use of immovable property i.e. mosque with land beneath and appurtenant thereto, therefore, Magistrate was required to proceed in accordance with Section 147 Cr. P. C. 561-A No.39/2018 Page 3 of 8
9. True it is that in terms of Section 145 Cr. P. C, when a dispute concerning land or water is likely to cause breach of peace, proceedings under Section 145 Cr. P. C can be initiated. The land and water includes buildings, markets, fisheries, crops or other produce of land and the rents or profits of any such property, as is clear from sub-section (2) of Section 145 Cr. P. C. When on dispute giving rise to breach of peace proceedings are initiated under Section 145 Cr. P. C, then in terms of Section 145(4) Cr. P. C, Magistrate has to conduct enquiry regarding possession without reference to the merits or the claims of any such parties to a right to possess the subject of dispute.
10. Learned Judicial Magistrate on the basis of reports of Tehsildar and Police Station and on the basis of application submitted by the Police Station through PO, Magam, has derived satisfaction about existence of breach of peace, as such, has initiated proceedings
11. Perusal of the application and the reports submitted to the learned Magistrate reveal that there is a dispute concerning land and mosque. What are the rival claims of two fractions i.e. Anjumani Sherian Shian and Local Auqaf Committee will be clearly assessed after both the parties will submit their respective written statements which the learned Magistrate has asked them to submit. Only then it shall be clear to the Magistrate whether the dispute pertains to possession or right of use of the mosque and land.
12. Right of possession regarding mosque can't be claimed. Mosque, in fact, is open to all Muslims for offering five time prayers and otherwise further prayers. There has to be a management for running the affairs of the mosque i.e. maintenance, cleanliness, maintaining its assets etc. etc. That 561-A No.39/2018 Page 4 of 8 indirectly would mean that someone has to take care of the affairs of the mosque and its assets. Who can be the person(s) having right, is a matter which requires enquiry.
13. Unfortunate as it is, that a mosque has been sealed in view of dispute between two groups which has given rise to breach of peace. Mosque is a place for offering prayers, not a place where anyone can afford to create dispute which may give rise to breaking of heads.
14. Contention of the learned counsel for the petitioner in the context of applicability of Section 145 Cr. P. C, at this stage, cannot be entertained. In both cases, learned Judicial Magistrate has powers to pass appropriate orders. To stress Section 147 Cr. P. C is applicable, is with the object to contend that under Section 147 Cr. P. C, Magistrate has no powers to attach the disputed property but such a contention cannot be entertained for a reason i.e. in terms of sub-section (2) of Section 147 Cr. P. C, Magistrate is clothed with the power to make an order prohibiting any interference. In addition thereto, Section 147 (1) also provides that while receiving evidence during enquiry, the procedure provided under Section 145 has to be adopted which position is made clear in sub-section (1-a) of Section 147 which provides that the provisions of Section 145 shall, as far as practicable may be, applicable in the case of such enquiry.
15. 3rd Proviso to sub-section (4) of Section 145 Cr. P. C provides that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute pending his decision under this Section.
561-A No.39/2018 Page 5 of 816. While reading Section 145 and 147 conjointly, what will emerge is that the procedure regarding enquiry as to possession or a right, is same as prescribed under Section 145(4) Cr. P. C. In this regard, support can be had from the judgment rendered by the High Court of Orissa in the case of "Niranjan Behera and another v. Laxmidhar Rana and others"
reported in 1991 Cri. L. J. 1599. In the said judgment while relying on the law laid down by the Hon'ble Apex Court in AIR 1970 SC 140, it has been held as under:
"It is well recognized that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power."
17. In the reported judgment, High Court of Orissa has also noticed as to what has been held by the Hon'ble Apex Court in AIR 1986 SC 984, wherein it has been held that:
"...Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxium 'ubi aliquid conceditur, conceditur at id sine quo res ipse esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist) vide Earl Jowitt's Dictionary of English Law 1959 Edn. P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless 561-A No.39/2018 Page 6 of 8 something not authorized in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration".
The principle laid down in the decision is being consistently followed by this court."
18. It shall also be relevant to quote para 5 of the reported judgment:
"5. The principles laid down and referred to above are undoubtedly applicable to this case. Despite the fact that S. 147 of the Code does not contemplate an interim arrangement by way of any interlocutory order, yet, on account of hardship to a party, the Executive Magistrate must be deemed to have the power to pass an interlocutory order. In the case of Uchab Chandra Das v. Khirod Ch. Das and others (supra) 1972 Cr. LJ 1148) these principles were not noticed, and so the ruling cannot be accepted as a precedent."
19. What follows from above is that while exercising powers under Section 147 Cr. P. C, interlocutory orders can be passed on account of hardship to a party. Applying the principles as laid down, even under Section 147 Cr. P. C, Court is clothed with the power to make interlocutory orders so as to advance the object of proceedings initiated under Section 147 Cr. P. C.
20. No doubt, learned Judicial Magistrate has proceeded under Section 145 Cr. P. C, however, position will be clear before the learned Magistrate after both the parties will submit their respective written statements which 561-A No.39/2018 Page 7 of 8 will be indicative of the fact as to what are their respective claims. At this stage it shall not be appropriate to interfere with the orders passed by the learned Magistrate.
21. Suffice it to say that keeping in view the sensitivity of the matter coupled with the fact that the mosque has been sealed, learned Magistrate will make an endeavor to conclude the proceedings and pass appropriate orders with promptitude. The parties shall cooperate with the Magistrate by putting up their respective cases by filing written statements and other documents whatever required.
22. Counsel for the parties shall ensure presence of the parties before learned Judicial Magistrate 1st Class (Sub Judge), Chadoora, on 12th March, 2018.
23. Disposed of as above.
24. Copy of the order be sent to the learned Judicial Magistrate 1 st Class (Sub Judge), Chadoora, for information.
(Mohammad Yaqoob Mir) Judge Srinagar 08.03.2018 "Bhat Altaf PS"
561-A No.39/2018 Page 8 of 8