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2018 Supreme(J&K) 895
IN THE HIGH COURT OF JAMMU AND KASHMIR
MOHAMMAD YAQOOB MIR, J.
Idara Auqaf Jamia Masjid Magam - Appellant
Versus
SSP Budgam and others - Respondent
561A No. 39 of 2018 and M P No. 1 of 2018
Decided on : 08-03-2018
Advocate Appeared:
S.R. Hussain, Adv., M.A. Beigh, Adv., Javed Iqbal, Adv., Malik Shabir, Adv.
The main legal point established in the judgment is the need for prompt resolution of disputes concerning the management of religious properties to avoid breach of peace, and the power of the Magistrate to make interlocutory orders under Section 147 Cr.P.C.
Headnote:
Section 145 Cr.P.C - Dispute over Mosque Management - Section 145, Section 147 - The court discussed the applicability of Section 145 Cr.P.C in a dispute over the management of a mosque and the power of the Magistrate to make interlocutory orders under Section 147 Cr.P.C. The court emphasized the need for prompt resolution of the dispute and directed the parties to cooperate with the Magistrate in filing written statements and other required documents.
Fact of the Case:
Dispute arose between two groups over the management of a mosque, leading to apprehension of breach of peace. The Executive Magistrate initiated proceedings, and the matter was transferred to the Court of Judicial Magistrate 1st Class (Sub Judge), Chadoora, who issued notices to both parties and directed the disputed property to remain attached.
Finding of the Court:
The court found that the dispute concerned the management of the mosque and land, and emphasized the need for prompt resolution to avoid breach of peace. It directed the parties to cooperate with the Magistrate in filing written statements and other required documents.
Issues: Dispute over mosque management, applicability of Section 145 Cr.P.C, and the power of the Magistrate to make interlocutory orders under Section 147 Cr.P.C.
Ratio Decidendi: The court emphasized the need for prompt resolution of the dispute and directed the parties to cooperate with the Magistrate in filing written statements and other required documents. It discussed the applicability of Section 145 Cr.P.C in the context of the dispute and the power of the Magistrate to make interlocutory orders under Section 147 Cr.P.C.
Final Decision: The court disposed of the matter, directing the parties to cooperate with the Magistrate and ensure their presence before the learned Judicial Magistrate 1st Class (Sub Judge), Chadoora, on a specified date.
Mohammad Yaqoob Mir, J.
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 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 1st 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 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.
9. True it is that in terms of S
