Sundarasamy vs Shanmugham and Others

Arunachalam, J.—Sundarasamy who was the respondent-A party in M.C.No.54 of 1989 on the file of the executive Sub Divisional

Magistrate and Revenue Divisional Officer, Sivaganga, a proceeding initiated under S. 145, Criminal Procedure Code by the 3rd respondent

herein, has chosen to challenge the sustainability of the verdict of the Court of Sessions, Ramanathapuram at Madurai made in Criminal R.C. No.

35 of 1989 reversing the order of the Inquiring Court holding in his favour.

Respondents 1 and 2 in this revision were shown as members of B party in M.C.No.54 of 1989 while the third respondent was the complainant

therein. The 3rd respondent sent a report on 5.3.1989 to the executive Sub Divisional Magistrate and Revenue Officer, Sivaganga stating that he

expected some law and order problem during sivaratri celebration at Arulmigukaruppanna Swamy Koil, Vani Village, Elayangudi on 6.3.1989. He

had prayed for promulgation of an order under S. 145, Criminal Procedure Code.

The Executive Magistrate on the very same day promulgated an order under S. 145(1), Criminal Procedure Code and directed the petitioner

and respondents 1 and 2 to appear before him in person or by pleader at 11 a.m. on 20.3.1989 and put in written statements of their respective

claims as regards the appointment of trusteeship an respective judgments or proceedings of any Court. Executive Magistrate also directed the 3rd

respondent not to allow both the parties to enter upon the disputed premises pending inquiry and until a decision was taken and final orders were

pronounced as such a course was necessary in the interests of maintenance of public tranquillity and peace till the function was over. Both the

parties filed their written statements. Though it is not clear from the order of the Executive Magistrate whether any documentary evidence was

produced since no such list is appended to the order, an order of the Deputy Commissioner, H.R. & C.E. Board dated 29.12.1980 appointing B

party members as joint trustees, had been produced. The petitioner claimed to be the hereditary trustee of Arulmigu Karuppanna Swami Koil. The

said fact was not disputed by respondents 1 and 2, who claimed that they had been appointed as joint trustees by the Deputy Commissioner, H.R.

& C.E. Board by an order dated 29.12.1980 under the powers vested in him under S. 49 of the HR & CE Act. Ex.A1, the said order shows that

respondents 1 and 2 had been appointed for a period of three years. The petitioner took a stand before the inquiring court that the appointment of

the respondents 1 and 2 had lapsed on 29.12.1983 by efflux of time and therefore they had no right over the temple. Per contra respondents 1 and

2 claimed that inasmuch as they had not taken charge as additional trustees, the period must be reckoned from the dale of actual taking of charge.

In between there was wealth of litigation between the parties. It appears, that after inquiry on a charge of mismanagement of institution by the

petitioner, respondents 1 and 2 were appointed as two non-hereditary trustees in the interest of the institution, to act as a check on the conduct of

the petitioner thus providing for management by a Board of Trustees rather than singly by the petitioner alone. The petitioner preferred R.P. Nos. 1

and 6 of 1981 challenging the order of appointment of non-hereditary trustees before Deputy Commissioner, H.R. & C.E. in Ramanathapuram at

Madurai. Both revisions were dismissed on merits. The petitioner was unsuccessful in his further revision before the Commissioner, H.R. & C.E.

Madras. The Commissioner while rejecting the revision observed that the petitioner could initiate proceedings in a civil Court. Therefore the

appointment of respondents 1 and 2 as non-hereditary trustees was upheld in all proceedings. The petitioner filed O.S. No. 344 of 1981 before

the District Munsif''s Court, Paramakudi. I.A. No. 942 of 1981 in O.S. No. 344 of 1981 was also filed for an ex parte order of injunction to

restrain respondents 1 and 2 from taking part in the management of the affairs of the temple. An ex parte injunction obtained by the petitioner was

later vacated. The petitioner filed C.M.A. No. 15 of 1982 before the District Judge, Ramanathapuram challenging the dismissal of his plea for

injunction. Pending appeal, there was an order of interim injunction, but ultimately the appeal itself was dismissed. The petitioner filed C.R.P. No.

343 of 1983 before this Court against C.M.A. No. 15 of 1982 but he did not succeed. However, this Court directed that the trial of the suit

should be expedited. The petitioner instead of conducting the suit, withdrew it. The petitioner again filed O.S.No.53 of 1984 before the Sub Court,

Ramanathapuram almost on identical allegations made in O.S. No. 344 of 1981. This suit led to A.S. No. 288 of 1985 before the Additional

District Judge, Ramanathapuram, at Madurai and S.A.No.211 of 1988 before this Court. The petitioner did not succeed in any of these

proceedings. In the net result the power of the H.R. & C.E. Department to appoint non-hereditary trustees was upheld and equally it was found

that the petitioner was not entitled to any injunction to restrain the other trustees from managing the affairs of the Institution.

Thereafter the petitioner filed W.P.No.5616 of 1988 for issue of a Mandamus to forbear respondents 1 and 2 and others from disturbing in any

way his officiation as hereditary trustee of the temple pursuant to the order dated 25.11.1980 deciding to appoint respondents 1 and 2 as co-

trustees. Pending disposal of the writ petition, the petitioner had prayed for an interim injunction restraining respondents 1 and 2 from interfering

with his office as hereditary trustee. On 15.2.1989 the writ petition was dismissed holding that the petitioner was not entitled to invoke the

extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioner preferred W.A.No.261 of 1989 challenging the verdict in

W.P.No.5616 of 1988. He was again unsuccessful in that the writ appeal was dismissed on 7.3.89. This court observed that the petitioner cannot

seek a writ of mandamus for the very same relief after having come upto this Court by way of S.A.No.211 of 1988. However, the appellate court

chose to delete the following observations of the single judge in the writ petition

Hence the right of the petitioner to the office of hereditary trusteeship to the temple in question has been negatived by a competent forum.

It is thereafter at or about the same time in March, 1989 that proceedings under S. 145, Criminal Procedure Code were initiated.

Inquiring Magistrate held as follows by his final order dated 31.7.1989.

In this, S.145, Crl.P.C. was invoked because some untoward incident was expected at the time of Sivaratri festival in the temple. The festival was

over on 6.3.1989 and no untoward incident took place at the time of festival. Now it is 5 months lapsed and the temple is kept closed. No law and

order problem is reported and that is established beyond doubt that A party is the trustee of the temple in question and B party ceased to be

additional trustees. The Asst. Commissioner has also requested to allow a Party to conduct regular poojas of the temple. In these circumstances, I

hereby decide and declare under S. 145(4) and (6) Cr.P.C. that A party should perform poojas as hereditary trustee from now onwards and B

party should not interfere with the pooja and administration of the temple.

In the course of the order it has been mentioned by the inquiring Magistrate that the temple had been kept under lock and key for a long period.

Respondents 1 and 2 who were aggrieved by the order of the Executive Magistrate, preferred Criminal Revision Case No. 35 of 1989 before the

Principal Sessions Judge, Ramanathapuram at Madurai. The learned Sessions Judge took note of all the prior proceedings between the opposing

parties. He found that there was no dispute that the petitioner was the hereditary trustee, but held, basing on a judgment of this Court, that the

period of office of respondents 1 and 2 should be calculated from the date of actual taking of charge by them. To that extent ,the order of the

inquiring Court was erroneous. The revisional Court also pointed out that all that the Assistant Commissioner, H.R. & C.E. had indicated was that

the temple had been kept locked for a long time even without daily poojas and therefore the proceedings initiated under S. 145, Criminal

Procedure Code had to be quickly terminated and suitable orders passed, and nothing more. Finally it was observed that proceedings under S.

145, Cr.P.C. were not maintainable and therefore the order of the Executive Magistrate was liable to be set aside.

While allowing the revision the learned Sessions Judge has observed that the revision petitioners therein (Respondents 1 and 2) must approach

the Hindu Religious and Charitable Endowment Board and inform them of the actual date of their taking charge as non-hereditary trustees and

thereafter along with the petitioner engage themselves in management of the temple.

In this revision, it was contended that the first revisional Court had exceeded its jurisdiction and had made observations which cannot be

sustained. It was also pointed out that the petitioner had the right to be in actual management of the temple as hereditary trustee and his right cannot

be hampered by any order made under S. 145, Cr.P.C.

Learned Counsel appearing on behalf of respondents 1 and 2 contended that the interest of these respondents was that the temple should not

be kept locked and they, as non-hereditary trustees must be allowed to join the petitioner and manage the temple in the interests of all concerned.

I have carefully considered the contentions of both the Counsel. To my mind the very initiation of proceedings under S. 145, Cr.P.C. was

totally misconceived. S. 145 is intended to be invoked when a dispute likely to cause breach of peace existed concerning any land or water or the

boundaries thereof. The object of this proceeding is to find out the fact of actual possession of the subject of dispute. This proceeding is not

intended to be used as a short cut to decide title or right to possession. The order promulgated under S. 145(1) Cr.P.C. extracted earlier seeks to

call for written statements regarding respective claims to the appointment of trusteeship to the temple. Preliminary order certainly is not in

consonance with the contemplation under S. 145, Cr.P.C. Further there is no scope whatsoever under S. 145, Cr.P.C. to direct both the parties

to the proceedings not to enter upon any disputed premises.

Both the Counsel have conceded that neither of them is in actual possession. The temple has been locked and respondents 1 and 2 had not

take possession in pursuance of the order of appointment dated 29.12.1980. The proceedings initiated under S. 145, Cr.P.C. should be held to be

a non est. Therefore there cannot be an order by the inquiring Magistrate under S. 145(4) and (6), Cr.P.C. declaring the right of a party to

perform poojas without any interference in the pooja or administration of the temple by the B party. Similarly the first revisional Court after having

held correctly that proceedings initiated under S. 145, Cr.P.C. were not maintainable, ought to have quashed the proceedings and while quashing

the order of the inquiring Magistrate and allowed the parties to get their grievances remedied in the proper forum.

Mr. R.S. Venkatachari, learned Counsel for respondents 1 and 2 submitted that a proceeding under S. 147, Cr.P.C. would be maintainable

and therefore this Court can pass suitable orders converting the entire proceedings now as one initiated under S. 147, Cr.P.C. It may be that a

right to manage, may attract the provisions of S. 147, Cr.P.C., but I am not called upon to decide that question in this revision. Initiation of

proceedings either under S. 145 or S. 147, Cr.P.C. would relate to satisfaction to be arrived at by the Executive Magistrate depending on the

material placed before him and the likelihood of breach of peace.

On the material available I am of the firm view that initiation of proceedings under S. 145, Cr.P.C. and its further revision to the District Court,

Ramanathapuram were totally misconceived and beyond the scope of the section. From the factual details stated earlier, it is evident that the

parties are claiming the right to manage the institution, one as hereditary trustee and the other as non-hereditary trustees appointed by Hindu

Religious and Charitable Endowment Board. Personal rivalry and bickering between the parties should not be allowed to hamper the smooth

working of a temple. This fight between the opposing parties hinders the right of a common man to worship. The Hindu Religious Endowment

Board should in all fairness find a way out to have this impasse redressed. It is not the duty of this Court to direct any particular act to be done by

any party or the Hindu Religious and Charitable Endowment Board in this revision because it will be beyond the scope. Neither party shall either

incur advantage or suffer disadvantage, in pursuance of this misconceived proceedings initiated under S. 145, Cr.P.C. All that can be hoped is that

good sense would prevail for the Ultimate opening of temple for worship.

I set aside the orders of the Executive Magistrate in M.C.No.54 of 1989 and the learned Sessions Judge in Crl.R.C.35 of 1989 and quash the

entire proceedings initiated under S. 145 Criminal Procedure Code. It will be open to the parties to seek remedies as may be available to them in

law. This revision is ordered accordingly.