Himachal Pradesh High Court
Shamsher Kalta & Others vs Of on 19 October, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMMO No. 819 of 2022 .
Reserved on : 08.08.2023
Decided on : 19.10.2023
Shamsher Kalta & others ...Petitioners
Versus
of
State of Himachal Pradesh & others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
rt Whether approved for reporting?1 Yes.
For the petitioners: Mr. Neeraj Gupta, Senior Advocate, with Mr. Ajeet Pal Singh Jaswal, Advocate.
For the respondents: Mr. Tejasvi Sharma, Additional Advocate General, for respondent No. 1.
Mr. Shrawan Dogra, Senior Advocate, with Mr. Nitin Thakur, Advocate, for respondents No. 2 to 6, 8 to 18.
Mr. Abhishek Dulta, Advocate, for respondent No. 7.
Virender Singh, Judge.
Petitioners have filed the present petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), with a prayer to quash the order, 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/10/2023 20:38:47 :::CIS 2dated 6th August, 2022, passed by the Court of learned Additional Sessions Judge (CBI), Shimla, District Shimla, .
H.P. (hereinafter referred to as the 'Revisional Court') in Cr.
Revision No. 1-R/10 of 2020, and order, dated 10 th August, 2020, passed by Sub Divisional Magistrate, Rohru, District Shimla, H.P. (hereinafter referred to as the 'trial Court'), in of Case No. 81/2020, under Section 147 CrPC.
2. Petitioners have also sought the consequential rt relief to quash the petition instituted by respondents No. 2 to 4, namely, Shri Hariman Rawat, Shri Sanjeev Dulta and Shri Devi Ram Bhagta.
3. For the sake of convenience, the parties to the present lis are, hereinafter, referred to, in the same manner, as, they were referred to by the learned trial Court.
4. Brief facts, leading to the filing of the present petition, before this Court, may be summed up, as under:
4.1. The petitioners had moved the petition for maintaining public peace and tranquility, before the learned trial Court. In the said petition, they had arrayed ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 3 Shri Chattar Singh, Rajeshwar Kalta and Shri Kanwar Singh as the respondents.
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4.2. In the said petition, it had been pleaded that the area, known as Sharachali, comprises of different villages in Pargna Rawin. In the said area, there are three local deities, namely, Devta Banad, Devta Deshmouliya and of Devta Kiyalun. Devta Kiyalun is having a permanent temple and is not being carried from one place to another rt place, whereas, the other two local deities, i.e. Devta Banad and Devta Deshmouliya, are being carried from one place to another place, as per rotation, in the local villages, for one year. The names of those villages have been mentioned in the petition, as Jhagtan, Rohtan, Mandal, Jakhor Pujarli, Thana, Sheel Gaon and Dhadi Ghunsa.
4.3. The process of rotation of Devta Banad and Devta Deshmouliya, according to the petitioners, is being called as 'Branshi', in local dialect. Both the said Devtas are being carried out together, on rotation basis, and at the time of filing of the petition, before the learned trial Court, both the deities, namely Devta Banad and Devta Deshmouliya, were in Village Pujarli Jakhor. Holy sojourn ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 4 of both the deities, in the said village was, at the verge of completion and they were to move further to Village Thana, .
on 25th August, 2020.
4.4. It is their further case that this tradition of 'Branshi' is being followed from the time immemorial as whenever, the deities are taken to a particular village, on of rotation, the inhabitants of the said village used to celebrate the occasion, out of faith, pride and festivity. The rt arrival of the deities is being considered as good omen and it is believed that it would bring fortunes to the inhabitants of those villages.
4.5. The deity, as per the pleadings, are functioning through the set of persons, entrusted with different responsibilities, which have been tabulated in the petition, as under:
KARDAR (Person in charge) Sr. No. Name Temple/Devtas Entrusted
1. Hariman Rawat Devta Banad, Devta Deshmauliya & Devta Kiyalun
2. Sanjeev Dulta Devta Banad, Devta Deshmauliya & Devta Kiyalun
3. Devi Ram Bhagta Devta Banad, Devta Deshmauliya & Devta Kiyalun
4. Shiv Singh Devta Banad, Devta Deshmauliya & Devta Kiyalun Kardar are same for three Devtas ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 5 Wazir Sr. No. Name Temple/Devtas Entrusted
1. Chattar Singh Kalta Devta Banad .
2. Surender Panta Devta Deshmauliya
3. Joginder Singh Sethi Devta Kiyalun Mali Sr. No. Name Temple/Devtas Entrusted of
1. KanwarSingh Kalta Devta Banad
2. Jagat Ram Panatu Devta Deshmauliya
3. Brahma Nand Sharma Devta Kiyalun 4.6.
rt It is their further allegation that the old tradition of 'Branshi' (custom of rotation) is being intended to be discontinued by the respondents and they intend to make Pujarli Jakhor as the permanent place of these two deities.
4.7. The said act of respondents has been objected to by the petitioners, being against the custom, prevailing from time immemorial, however, the request/objection, so made by the petitioners, had fallen on the deaf ears of the respondents.
4.8. As per the petitioners, the said prayer/objection has also been ignored by the respondents, on the ground, that they have the sole power of decision making and they ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 6 need not ask anybody. They have also proclaimed that they do not care about any custom.
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4.9. Not only this, according to the petitioners, they have also threatened to dissolve the kardar's committee.
In this regard, the petitioners have levelled the allegations against respondent No. 1, by pleading that he, in of connivance with respondent No. 3, wants to oust three kardars. rt 4.10. The act of the respondents is also stated to be a mockery of the old age tradition and in violation of the trust and faith of the general public.
4.11. Respondents' act is also stated to be detrimental to the sentiments, faith and trust of the inhabitants of the area.
4.12. The petitioners have also elaborated their stand, by stating, that on 18th July, 2020, the Management Committee, Devta Sahib Banad, Kiyalum, Deshmauliya, had apprised the learned trial Court, through representation, dated 1st March, 1993, that the Management Committee had decided that Wazir shall not interfere in the matter of Management Committee. The ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 7 matter of rotation of the deities falls under the purview of the Management Committee and the Management .
Committee has decided to continue with the custom of 'Branshi', however, respondent No. 1, in connivance with respondent No. 3, has misled the public and, as such, is interfering in the work of kardar. The kardars of Devta of Deshmauliya and Devta Kiyalum also had objected to the same, but, the respondents had not paid any heed to the rt request/objection of the kardars.
4.13. As per the case of the petitioners, on 15 th July, 2020, one Buta Ram Sharma was inducted as Mali of Devta Kialun, whereas, as per the record of the year 1996, the said Buta Ram Sharma was dismissed as Mali.
5. On the basis of the above factual position, the following prayers had been made in the petition, before the learned trial Court:
"a. That the respondents No. 1 to 3 may permanently be restrained from interfering in the matter of Kardar and shall also be restrained from changing the custom of Branshi in Sharachali and the custom which are prevalent from time immemorial may kindly be continued.
b. That the respondents No. 1 to 3 may further be restrained from changing the Kardar under the garb of sham verdict of deity i.e. Khel of respondent No. 3.::: Downloaded on - 19/10/2023 20:38:47 :::CIS 8
c. That the respondent No. 2 may also be directed not to interfere and intervene in the matters of local deity as respondent No. 2 is not entrusted with any responsibility.
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d. That further the peace and tranquility of general public may not be disturbed.
e. That Ex-party ad-interim stay/order may be passed in favour of the petitioners and against the respondents and Naib Tehsildar Sawra may kindly be directed to supply the Ex-party order if of granted at earliest.
f. That any other relief which this Ld. Court deems fit may kindly be granted in favour of the
6. rt petitioners and against the respondents."
Alongwith the said petition, copy of petition, dated 18th July, 2020; copy of resolution, dated 21 st February, 1993, copy of resolution, dated 24th April, 2020 and copy of resolution, dated 20th June, 2020, have been annexed.
7. After perusing the contentions made in the petition, the learned trial Court has decided to initiate the proceedings, under Section 147 CrPC, however, before issuing notices to the parties, Naib Tehsildar, Saraswati Nagar, was directed to submit a report.
8. On the basis of the report, submitted by the Naib Tehsildar, Saraswati Nagar, as well as, SHO, Jubbal, on 31st July, 2020, the learned trial Court has decided to ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 9 issue notices to all the Kardars, Malis, Wazirs and all the representatives of the villages involved, as per the report of .
the Naib Tehsildar, Saraswati Nagar.
9. On 10th August, 2020, in the presence of the parties, as well as, 29 other persons of the area, the learned trial Court has passed the order, directing them to of continue with the custom of 'Branshi', prevailing from the time immemorial.
rt The relevant portion of the impugned order, is reproduced, as under:
"12. In view of the above discussion, I find sufficient reasons to believe that the villagers of all the seven villages have their rights from time immemorial to worship these Deities in temples (places) located in their own villages on rotation basis under which the Deities visit each village every seventh year and stay there for that complete year. Accordingly, a prohibitory order under section 147 CrPC, against the opposite parties and against all those who want to discontinue the practice of worshipping these Deities in all the seven places, is being issued for maintaining peace and tranquility in the Sarachali area. The prohibitory order is attached herewith. The present management committee has failed to address the differences. The committee's impartiality in management of the affairs has been challenged and that challenge stands proved in view of the discussion here-in-before. Therefore, in order to ensure permanent settlement of the dispute, it is also ordered that a committee of 21 number of persons marked present at Sr. 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 13, 14, 17, 18, 19, 20, 21, 23, 24, 25 & 29; and duly approved and proposed by the devotees of respective villages shall constitute the "General ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 10 House" for further management decisions in respect of the Deities. It is advised that a duly registered management system should be in place at the earliest possible failing which law & order .
challenge may crop up at any time in future in the area. Let a copy of this order be sent to Sub- Divisional Police Officer Rohru, Naib Tehsildar Saraswati Nagar, SHO Jubbal, all the concerned Pradhan's, all the petitioners and respondents for compliance. Let a copy of this order be affixed at all the conspicuous places of concerned villages through the machinery of Naib Tehsildar of Saraswati Nagar for information and compliance of the general public. Case file after duly completion be consigned to the general record room."
10. rt On the basis of the said order, prohibitory orders, under Section 147 CrPC, were issued on 10 th August, 2020.
11. Feeling aggrieved from the said order, one Shamsher Kalta, s/o Shri Mohan Kalta, r/o Village Mandal, Tehsil Jubbal, District Shimla, H.P. (petitioner No. 1 in the present petition), whose name has also been mentioned at serial No. 25, in the list of the persons present, at the time of passing of the order, dated 10 th August, 2020, by the learned trial Court, has filed the revision before the learned Revisional Court, against the order, dated 10th August, 2020, passed by the learned trial Court.
::: Downloaded on - 19/10/2023 20:38:47 :::CIS 1112. The order, passed by the learned trial Court, has been assailed, on the ground, that no copy of the .
petition, was served upon him. As per him, the learned trial Court has issued the direction to the Naib Tehsildar, Saraswati Nagar, for submitting a detailed field report, whereas, the said function was not administrative function of and the procedure, as per the CrPC, has not been followed.
12.1. The impugned order has also been assailed, on rt the ground, that the dispute, as involved, in the present case, does not attract the provisions of Section 147 CrPC.
The notices were ordered to be served upon the interested persons on 6th August, 2020, with a direction to put appearance on 10th August, 2020, that too, without the copy of the petition. The procedure adopted by the learned trial Court, according to the petitioner before the learned Revisional Court, is also stated to be unknown to the law.
12.2. The report, submitted by SHO Jubbal, is also stated to be submitted without conducting any inquiry.
There was no material before the learned trial Court to justify that there was some apprehension of breach of ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 12 peace. Without any such material, the learned trial Court cannot issue the order, under Section 147 CrPC.
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12.3. The other ground to challenge the impugned order is that the learned trial Court has no power to constitute a Committee of 21 members, as, the constitution of the Committee for the purpose of performing the of religious ceremonies and compliance of the custom of worshipping of Deities does not fall under the purview of rt Section 147 CrPC.
13. On the basis of the above facts, a prayer has been made to set aside the impugned order. The said Revision Petition has been dismissed by the learned Revisional Court, vide judgment, dated 6 th August, 2022.
The operative part of the judgment, contained in paras 21 to 24, is reproduced, as under:
"21. It was admitted by both the parties before the SDM that there exists temples of Deities in all of the seven villages i.e. Pujarli, Thana, Mandal, Rohtan, Sheelgaon (Turan), Jharashali (Jhagtan) and Dhadi Ghunsa. It was also not disputed that in very seventh year, these Deities make a visit to each of these villages on the rotation basis and people celebrate this occasion. It was also not disputed that Deities are housed in the temples existing in each village and villagers assemble there for the worship of the Deities.::: Downloaded on - 19/10/2023 20:38:47 :::CIS 13
22. Practice of rotational visits of deities to the temples in the referred villages is also not stated to be incorrect while this revision petition is filed.
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23. On considering the matter, this court finds that there is no impropriety. In the facts and circumstances the impugned order was justified in law. As has been noticed, every omission in procedure does not lead to vitiating of the proceedings. As a result, the impugned order does not require any interference in the revision.
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24. It is made clear that, any person feeling aggrieved that the directions in the impugned order related to constitution of committee, is affecting his civil right, he may so establish, if rt permissible in law before the civil court of competent jurisdiction."
14. Feeling aggrieved from the said judgment, the present petition has been filed by the petitioner in the Revision Petition, i.e. Shri Shamsher Kalta, as well as, ten other persons, on the ground that the order passed by the learned trial Court and upheld by the learned Revisional Court, is without jurisdiction, as, the same are beyond the scope and purview of Section 147 CrPC.
15. As per them, the trial Court has no jurisdiction to pass the impugned order and to entertain the petition filed, before it, under Section 147 CrPC.
16. The orders passed by the Courts below have further been assailed, on the ground, that the dispute raised, in the petition, does not fall within the definition of ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 14 dispute with regard to the use of land or water. The alleged custom of 'Branshi', according to the petitioners .
herein, could not have been put up before the learned trial Court, under Section 147 CrPC, as, it was for the petitioners to establish the alleged custom, if any. The said issue is stated to be beyond the scope and purview of the of provisions of CrPC, especially, Section 147 CrPC.
17. The impugned order is also stated to have been rt passed in violation of the principles of natural justice.
18. Another ground of challenge of the impugned order is that no opportunity to file the reply, has been given to the respondents. No inquiry has been conducted, as per the law and no opportunity has been afforded to the parties to lead evidence.
19. As per the petitioners before this Court, the learned trial Court, without the evidence, has assumed the existence of custom of 'Branshi'. It is their case that the report, dated 26th July, 2020, submitted by SHO Jubbal, as well as, the report submitted by Executive Magistrate, Saraswati Nagar, dated 29th July, 2020, do not fall within the purview of term "enquiry". Hence, the impugned order ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 15 passed by the learned trial Court is stated to be not sustainable in the eyes of law.
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20. Lastly, the impugned order, passed by the learned Revisional Court, has also been assailed on the ground that the learned Revisional Court has committed a grave illegality, while holding that if the Deities are made of stationary at one place, the same shall affect the rights of the people of the other villages.
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21. According to the petitioners herein, the said aspect was beyond the scope and purview of the Courts below, in the proceedings, under Section 147 CrPC. The alleged custom of 'Branshi' has not been proved by the petitioners before the learned trial Court.
22. On the basis of the above facts, a prayer has been made to allow the petition, by setting aside the order passed by the learned Revisional Court, as well as, by the learned trial Court, by dismissing the petition, filed by the petitioners, before the learned trial Court.
23. In this case, the learned trial Court has initiated the proceedings, on the basis of the petition, moved by petitioners, namely Shri Hariman Rawat, Shri Sanjeev ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 16 Dulta and Shri Devi Ram Bhagta. In the application, they have specifically asserted that Devta Kiyalun is having a .
permanent temple and is not being carried from one place to another place, whereas, the other two local deities, i.e. Devta Banad and Devta Deshmouliya, are being carried from one place to another place, as per rotation, which is of stated to be 'Branshi', in local dialect. The prayer has been made in the application to restrain the respondents therein rt from changing the custom of 'Branshi'.
24. These proceedings were initiated by the learned trial Court, under Section 147 CrPC. This Section deals with the dispute, concerning the right of use of land and water.
25. It has vehemently been argued by the learned Senior Counsel appearing for the petitioners herein, that the proceedings are not maintainable, under Section 147 CrPC and the order passed by the learned trial Court is without following the procedure; the order is without jurisdiction; no opportunity of being heard was given to the respondents therein.
::: Downloaded on - 19/10/2023 20:38:47 :::CIS 1726. An objection has also been made, in the grounds of petition, that the copy of the report has not .
been supplied. Apart from this, the order passed by the learned trial Court has also been assailed on the ground that the evidence has not been recorded and a strange procedure has been adopted.
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27. The provisions of Section 147 CrPC, are reproduced, as under:
rt "147. Dispute concerning right of use of land or water. - (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.
Explanation.- The expression" land or water"
has the meaning given to it in sub- section (2) of section 145.
(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such, evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 18 of section 145 shall, so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such .
rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next of before the receipt under sub- section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at rt particular seasons or on particular occasions, unless the right has been exercised during the last of such a seasons or on the last of such occasions before such receipt.
(4) When in any proceedings commenced under sub- section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1); and when in any proceedings commenced under sub- section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub- section (1) of section 145."
28. The dispute, from the bare reading of the complaint, seems to be with regard to the worship of the local deities. As per the stand of the petitioners, there is a custom of rotation, which is being explained, in the ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 19 petition, as 'Branshi' and the respondents are trying to discontinue this old tradition.
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29. The stand of the petitioners, in their petition, filed before the learned trial Court, is that if 'Branshi' custom, which is being followed in the area, from time immemorial, if discontinued, the people of Jhagtan, of Rohtan, Mandal, Jakhor Pujarli, Thana, Sheel Gaon and Dhadi Ghunsa will be deprived from the blessings of these rt two deities, namely Devta Banad and Devta Deshmouliya, as, according to the pleadings, their visit, as per 'Branshi' (custom of rotation), brings good omen and fortunes to the inhabitants of the said villages.
30. In other words, it can be said that it is a sort of faith of the residents of the above seven villages, in these two devtas (local deities).
31. The bare language of Section 147 CrPC makes out a case that if the dispute is with regard to the use of land and water, the Executive Magistrate is competent to initiate the proceedings.
32. A Single Bench of Madras High Court, in case titled as Velappa Goundan and others versus ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 20 Ramaswami Goundan and others, reported in AIR 1938 Madras 537, has held that the dispute, with regard to the .
right to worship in temple, comes within the provisions of Section 147 CrPC. Relevant portion of the judgment, is reproduced, as under:
"It seems to me that where the dispute is of regarding a right which is inseparably connected with the use of any land or building it must be regarded as being within the purview of S. 147. It may be that the dispute in actual fact may have more to do with what rt a man does in the temple after entering into it and not so much with his actual entry into the temple; nevertheless where the right regarding which a dispute exists is one which is inseparably connected with the right to enter a building and cannot be dissociated from it the dispute cannot be said to be not one regarding an alleged right of user of the building. In this particular case it would appear that the dispute was also concerned with the right of possession of a particular room kept locked in the temple in which the puja materials are kept. The possession of this locked room is inseparably connected with the right to worship as pujari, for without these materials which are kept therein it is not possible for anyone to perform puja as pujari. It would therefore appear that the present dispute includes a dispute regarding the possession of the locked room in which these paraphernalia of worship are stored. It also appears to me that the policy of the legislature has been consistently, in the past, to enlarge the jurisdiction of the Magistrate in respect of disputes connected with any kind of user of "land" in its widest sense, and that it would be inconvenient if disputes which are really inseparably connected with lands or buildings were beyond the jurisdiction of the Magistrate.::: Downloaded on - 19/10/2023 20:38:47 :::CIS 21
On the whole, therefore, I am inclined to the view that the Magistrate had jurisdiction to deal with the present dispute and that his order cannot therefore be regarded as being .
void for want of jurisdiction. The petition therefore fails and is dismissed."
33. The right of worship is held to be the right of use of land and water, as, has been held by the Full Bench of the Calcutta High Court, in case, titled as Dhirendra of Nath Das versus Hrishikesh Mukherjee & others, reported in AIR (38) 1951 Calcutta 93.
rt The relevant para-20 of the judgment, is reproduced as under:
" 20. Even if this argument were accepted it appears to me that in the present case the dispute might well be a dispute as to the right to use the land because the petitioner claims the right to exclude the Hindu public from this land altogether whether for worship or any other purpose. However, it seems to me that if it is sought to exclude the public from worshipping Gopalji Thakur in this temple, it is a dispute relating to a particular form of user of this particular land. This right of the public to perform certain acts on this land, acts of reverence and devotion, is denied. What in effect is denied is the rights of the public to use the temple in a particular; manner. The user of a temple involves far more than mere entry on it and the purpose of the entry affects the user of the temple. A slight-seer may enter a temple to examine some old carvings or inscriptions. He can be said to use the temple merely for sight-seeing. A devout Hindu who lives in the District and is familiar with all the carvings and old inscriptions in the temple enters it not with a view to seeing those interesting objects, but rather to offer worship to the deity installed therein. He may perform a number of ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 22 acts of worship and it seems to me quite clear that the user of the temple by a devout Hindu is a very different user from that of the sight- seer. Further, a man who is a stranger to the .
District might enter the temple both for sight-
seeing and worship and his user would be different from the user of the sight-seer purely or of the devout Hindu. The user of the temple will depend on the purposes for which a person has entered the precincts of the temple. If these purposes are devotional then he uses the temple in a particular manner. If someone of denies his right to worship, he denies his right to use the temple in a devotional manner. That is to my mind a clear denial of his right to use the temple and such a right falls within sec.
34. rt 147 of the Code of Criminal Procedure."
In view of the above decisions, this Court is of the opinion that right to worship is a right of user of land, within the meaning of Section 147 CrPC.
35. When, the dispute is held to be within the provisions of Section 147 CrPC, then, the learned Senior Counsel appearing for the petitioners could not satisfy the judicial conscience of this Court as to how the learned trial Court is not having the jurisdiction to pass the appropriate order, under Section 147 CrPC.
36. In view of the above decision, the provisions of Section 147 (1) CrPC cannot be read in narrow sense, by holding, that the dispute with regard to the right of land and water can be taken into consideration, by the ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 23 Executive Magistrate, while initiating the proceedings, under Section 147 CrPC.
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37. Even, the right to recite sankalpam is held to be right to water, as held by the Madras High Court in case, titled as Vempati Satyanarayana Murthy versus R. Krishna Iyer alias Krishna Rao and others, reported in of AIR (37) 1950 Madras 593. The relevant portion of the said judgment, is reproduced as under:
rt "This petition raises an interesting question of law, namely, whether the right to recite sankalpams to such persons as bathe in the holy pushkarani thirtham in Thirumalai Hills and want sankalpams will fall within the scope of S. 147, Crl. P.C. if there is a likelihood of the breach of the peace. The petitioner claims to have exercised that right exclusively since 1723 at least, and characterises the counter-petitioners as recent interlopers usurping his right. Once he and they are said to have fought over it. Later on the counter petitioners are said to be taking to their heels whenever they see the petitioner and his men approach. The learned Sub Divisional Magistrate initiated proceedings under S. 147 Crl. P.C. when asked to rescind the orders of the Sub Magistrate refusing to pass orders under S. 144 Crl. P.C., and pass orders under S. 144 Crl. P.C. and then dropped the proceedings on the ground that the counter petitioners were running away at the very sight of the petitioner and so there was no likelihood of a breach of the peace. The reason is not convincing, as even running persons may be chased and caught and beaten and a breach of the peace caused. But, after hearing Mr. V.T. Rangaswami Aiyangar and the ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 24 learned Public Prosecutor, I am satisfied that in the absence of an exclusive right in the petitioner to compel every person bathing in the holy pushkarani to submit himself to .
his sankalpam before using its water, the matter will not come under the scope of "a right to water" under S. 147 Crl. P.C. but only under the heading of "a right to utter sankalpam at a certain place to certain persons who desire it" a thing to be normally fought out in civil Courts by way of restraining others by a permanent injunction, or by S. 144 of Crl. P.C. proceedings in situations threatening a breach of the peace. I commend either step to the petitioner and dismiss this petition."
38. rt It has also been argued by the learned Senior Counsel appearing for the petitioners herein that the learned trial Court has no jurisdiction to pass the impugned order.
39. In order to buttress his contention, the learned Senior Counsel for the petitioners herein has relied upon the decision of the Madras High Court In re Vempati Satyanarayana Sastri, reported in AIR (33) 1946 Madras
412. The said decision of the Madras High Court, in no way, helps the case of the petitioners herein, as, the Magistrate, in the case, before the Madras High Court, has issued the warning not to create breach of peace by reciting sankalpams at certain tank, without taking evidence, whereas, in this case, the learned trial Court has ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 25 adopted the procedure, as prescribed, under Section 148 CrPC.
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40. The provisions of Section 148 CrPC, are reproduced, as under:
"148. Local inquiry. - (1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District of Magistrate or Sub- divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare rt by whom the whole or any part of the necessary expenses of the inquiry shall be paid.
(2) The report of the person so deputed may be read as evidence in the case.
(3) When any costs have been incurred by any party to a proceeding under section 145, section 146, or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of pleaders' fees, which the Court may consider reasonable."
41. As per the order, dated 21st July, 2020, the report from the Naib Tehsildar, Saraswati Nagar has been sought. The provisions of Section 147 CrPC have to be read with Section 148 CrPC and the conjoint reading of both these provisions makes out a case that the learned ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 26 trial Court has directed the Naib Tehsildar, Saraswati Nagar, to submit the report. The report, dated 29 th July, .
2020, is on the record. The Naib Tehsildar, Saraswati Nagar has recorded the stand of both the parties and submitted the same to the learned trial Court. He has also recorded their statement, on oath.
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42. Meaning thereby, the procedure, which has been followed by the learned trial Court, in the present rt case, calling upon the Naib Tehsildar, Saraswati Nagar, to submit the report, after inquiry, is as per the provisions of Section 148 CrPC. As such, the arguments of the learned Senior Counsel appearing for the petitioners herein, do not hold water.
43. From the above report, this Court is of the prima facie view that the custom of 'Branshi' has not been in dispute, in this case.
44. In support of his contention with regard to the fact that the procedure, so followed, by the learned trial Court, is not as per the law, the learned Senior Counsel appearing for the petitioners herein, has relied upon the decision of the Patna High Court, in case, titled as Manik ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 27 Chand versus Bhubneshwar Prasad, reported in AIR 1961 Patna 278.
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45. Since, there is no dispute with regard to the custom of 'Branshi', as transpired from the report submitted by Naib Tehsildar, Saraswati Nagar, wherein, the parties to the present dispute had given their joint of statements, on oath, this custom of 'Branshi' is, prima facie, proved. rt
46. The only reason, as per the stand taken by the parties to the present proceedings, before the Naib Tehsildar, Saraswati Nagar, for discontinuation of the custom of 'Branshi', is for the reason that the temple has been constructed in Village Pujarli. After perusing their stand, the learned trial Court has rightly passed the directions to the parties to continue with the custom of 'Branshi', till the decision of the same by the Competent Court of Law.
47. Since, in this case, the orders have been passed, under Section 147 CrPC, just to prevent the breach of peace, that too, subject to the final outcome of the dispute between the parties, by the Competent Court of ::: Downloaded on - 19/10/2023 20:38:47 :::CIS 28 Law, as such, the decision of the High Court of Allahabad, in case, titled as Onkar Nath Tewari versus Sri Ram .
Anjore Mishra and others, reported in 1973 Cri.L.J. 1885, is not applicable to the facts and circumstances of the present case, as question of title has not been decided by the learned trial Court.
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48. Considering all these facts, this Court is of the view that the order passed by the learned trial Court, as rt affirmed by the learned Revisional Court, does not require any interference, by this Court, that too, in the revisional jurisdiction.
49. In view of the above, the petition deserves to be dismissed and is accordingly dismissed, so also the pending miscellaneous applications, if any.
50. Send down the record.
( Virender Singh ) Judge October 19, 2023 ( rajni ) ::: Downloaded on - 19/10/2023 20:38:47 :::CIS