Before the Magistrate could take any action in the matter he was required to be satisfied from the report of the police officer made in pursuance of the complaint that a dispute likely to cause breach of the peace existed concerning any land and then he was to require the parties concerned to put in written statements of their claims as respects the fact of actual possession of the subject of dispute. As clarified in Sub-section (2) of Section 145 of the Code, the expression “land” includes buildings and the rents or profits of any such property. The order passed by the Magistrate is defective for this simple reason that it does not appear therefrom that there was any such dispute raised by respondent No. 1 in which he may have contended that at any time he had been in possession of the Church in dispute.
(1980) CLJ(Criminal) 44 : (1980) CriLJ 309
PUNJAB AND HARYANA HIGH COURT
SINGLE BENCH
( Before : C.S. Tiwana, J )
SAMUEL POLITUS AND ANOTHER — Appellant
Vs.
AZIZ WILLIAM BISHOP AND OTHERS — Respondent
Decided on : 29-01-1980
Criminal Procedure Code, 1973 (CrPC) – Section 145, Section 146, Section 482
ORDER
C.S. Tiwana, J.—This petition u/s 482 of the Cr. P. C. (hereinafter called the Code) filed on behalf of Samuel Politus and his son Phillips Politus on Aug. 31, 1979, is for the quashing of an order dated April 4, 1979, of the Sub-Divisional Magistrate, Ferozepore, passed under Sub-section (1) of Section 145 of the Code. On the same day the Magistrate had also passed an order u/s 146 of the Code attaching the property in dispute and then appointing a receiver. The property in respect of which these orders were passed is St. Andrew’s Church situated at Ferozepore Cantt. Frank Paul, after being appointed the receiver, had been directed to take charge of the Church and then to keep it with him till the final disposal of the proceedings u/s 145 of the Code.
2. Proceedings by the Magistrate were taken on the basis of a complaint made by Aziz William respondent No. 1, Bishop of the Church of North India, Priest of Amritsar, Before the Magistrate could take any action in the matter he was required to be satisfied from the report of the police officer made in pursuance of the complaint that a dispute likely to cause breach of the peace existed concerning any land and then he was to require the parties concerned to put in written statements of their claims as respects the fact of actual possession of the subject of dispute. As clarified in Sub-section (2) of Section 145 of the Code, the expression “land” includes buildings and the rents or profits of any such property. The order passed by the Magistrate is defective for this simple reason that it does not appear therefrom that there was any such dispute raised by respondent No. 1 in which he may have contended that at any time he had been in possession of the Church in dispute. There is only a mention of this fact in the impugned order u/s 145 of the Code that dispute existed about the possession of the Church and then respondent No. 1 along with the petitioners had been asked to show whether they were in actual possession. In the complaint, whose copy is Annexure A-l, presented to the Senior Supdt. of Police, Ferozepore, this kind of assertion was missed by respondent No. 1 that he was ever in possession of the Church. His case is that Chuni Lal Parshad, Anglican Bishop of Amritsar, wanted to take possession of the St. Andrew’s Church at Ferozepore Cantt. This possession was alleged to be intended to be taken so as to enable him to alienate the property “belonging to the Church in an illegal manner. It was then contended by respondent No. 1 that he had a right to look after the property of the Church of North India and on account of the threats given by Chuni Lal Par-shad he had to file an application u/s 145 of the Code. It was then asserted that there was a likelihood of the causing of the breach of the peace. In the police report, copy Annexure A-2/1, upon which the Magistrate took the action there is a mention of this fact that Chuni Lal Parshad claimed himself to be a Bishop and that on that ground a dispute existed between the parties. A request was made that the Church should be attached so that there may be no breach of the peace,
3. The receiver appointed by the Court never took possession of the Church and ultimately an order dated Sept. 3, 1979, was passed by Harbans Lal, J., that even if by that date possession had not been taken status quo was to continue. This was the report made by Head Constable Gurcharan Singh on Nov. 22, 1979, that the receiver did not take the possession and that Samuel Politus still continued to be in possession. .
4. The petitioners mentioned in para 5 of the petition that St. Andrew’s Church and its property belonged to the Amritsar Diocesan Trust Association registered under the Societies Registration Act. For short it is known as A.D.T.A. The Church of North India referred to as the C.N.I. was said to be laving a claim to the property of Anglican Church. The A.D.T.A. filed a suit in April, 1972, in the Court of the Senior Sub-Judge, Amritsar, for obtaining a perpetual injunction for restraining some persons from interfering in the property belonging to the A.D.T.A. The defendants to the suit conceded the right of the A.D.T.A. to manage their property and then a decree for perpetual injunction, as prayed for, was passed. St. Andrew’s Church was said to be affiliated to the Anglican Church and was controlled and managed by the A.D.T.A. Respondent No. 1 and the other defendants with him in the joint written statement filed by them made this admission that the property in dispute belonged to the A.D.T.A. However, it was asserted that the A.D.T.A. being a part of the C.N.I, the property could be said to be belonging to the C.N.I. It was in para 6 of the petition that reference to the previous litigation was made and in respect of it written statement is to the effect that a suit had been filed and that a compromise had taken place.
5. From the pleadings of the parties it is evident that what is in dispute is the right to manage the Church. The petitioners have been managing the same for a long time past and it is respondent No. 1 who without ever enjoying the right to management now wants to assert his claim though he has already failed in a Civil Court. The disputes as to the right to perform puja in a temple or festival in a mosque or the collections and offerings in a temple have never been considered to be coming within the purview of Section 145 of the Code. In view of Sub-section (2) of Section 145, only a dispute with regard to the rents or profits of the Church could be taken into consideration, and that too only if there had been any assertion by respondent No. 1 that he had on some previous occasion been in the actual possession of the Church or had been collecting the’ rents or profits of that property. It is a clear abuse of the process of the Court when the Magistrate passed an order u/s 145 of the Code without satisfying himself that respondent No. 1 was ever in possession of the Church. That order is taken to be without jurisdiction and is quashed on that ground.
Incidentally the order u/s 146(1) with regard to the attachment and appointment of the receiver is also quashed.
