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2020 Supreme(All) 280
IN THE HIGH COURT OF ALLAHABAD
RAM KRISHNA GAUTAM, J.
Anoop Keshari Alias Anoop Chowdhary - Appellant
Versus
State of UP And Others - Respondent
Application U/s 482 No. 2331 of 2020
Decided On : 27-02-2020
Advocate Appeared:
For the Appellant : Vimlendu Tripathi
For the Respondent: G.A., Ram Vishal Mishra
Point of Law
Order made under section 145 Cr.P.C. deals only with the factum of possession of party as on a particular date. It confers no title to remain in possession of disputed property against any decision of civil court.
Headnote:
Code of Criminal Procedure, 1973 – Sections 107, 116, 145(1), 146(1), 482 – Applicant argued that matter in question was not with regard to ownership and possession of any individual immovable property – property in question is of Arya Samaj Temple – There occurred no apprehension of breach of peace regarding above Arya Samaj Temple because O.P. No. 2 as well as applicant use to visit and worship in above temple – The dispute was regarding office of management and O.P. No. 2 was Secretary –Two cases regarding criminal breach of trust and other mismanagement of property of Society, Arya Pratinidhi Sabha, was got lodged against O.P. No. 2 and other co-accused preferred proceeding u/s 482 Cr.P.C. before this court, which was rejected – Then after a Special Leave Petition was filed before Apex Court where the S.L.P. was rejected –City Magistrate without making any appreciation of facts and law; by giving any reason, passed impugned order of attachment of Temple as well School Property of Arya Samaj Temple, whereby work of receivership has been assigned to consignee which was not within the jurisdiction of City Magistrate – Held, Dispute regarding office of management of Society, registered under Societies Registration Act, can never be held as dispute regarding ownership and possession of immovable property and for this Legislature has given Societies Registration Act with rules framed there under. Assistant Registrar has the authority to decide the dispute regarding management of office of Society – In case of its failure, reference is to be made to Sub Divisional Magistrate of area under Rule of above Act for adjudication – But by these impugned orders, under challenge, City Magistrate has decided to take over possession of property and has appointed some receiver for making management of above property, which was of Almighty having no dispute regarding its ownership and possession – Under garb of attachment order, receiver has been appointed, which power never vests with Executive Magistrate, particularly when civil suit has already been filed by O.P. No. 2 – There is a chapter under Code of Civil Procedure for appointment of receiver to protect the property in dispute – Both impugned orders passed by City Magistrate u/s 145(1) and 146(1) Cr.P.C. are hereby quashed – Appeal Allowed (Paras 9 and 10 )
Facts of Case
Applicant argued that matter in question was not with regard to ownership and possession of any individual immovable property – property in question is of Arya Samaj Temple – There occurred no apprehension of breach of peace regarding above Arya Samaj Temple because O.P. No. 2 as well as applicant use to visit and worship in above temple – The dispute was regarding office of management and O.P. No. 2 was Secretary –Two cases regarding criminal breach of trust and other mismanagement of property of Society, Arya Pratinidhi Sabha, was got lodged against O.P. No. 2 and other co-accused preferred proceeding u/s 482 Cr.P.C. before this court, which was rejected – Then after a Special Leave Petition was filed before Apex Court where the S.L.P. was rejected –City Magistrate without making any appreciation of facts and law; by giving any reason, passed impugned order of attachment of Temple as well School Property of Arya Samaj Temple, whereby work of receivership has been assigned to consignee which was not within the jurisdiction of City Magistrate.
Findings of Court
Dispute regarding office of management of Society, registered under Societies Registration Act, can never be held as dispute regarding ownership and possession of immovable property and for this Legislature has given Societies Registration Act with rules framed there under. Assistant Registrar has the authority to decide the dispute regarding management of office of Society – In case of its failure, reference is to be made to Sub Divisional Magistrate of area under Rule of above Act for adjudication – But by these impugned orders, under challenge, City Magistrate has decided to take over possession of property and has appointed some receiver for making management of above property, which was of Almighty having no dispute regarding its ownership and possession – Under garb of attachment order, receiver has been appointed, which power never vests with Executive Magistrate, particularly when civil suit has already been filed by O.P. No. 2 – There is a chapter under Code of Civil Procedure for appointment of receiver to protect the property in dispute – Both impugned orders passed by City Magistrate u/s 145(1) and 146(1) Cr.P.C. are hereby quashed.
Result: Appeal Allowed
JUDGMENT :
1. This application u/s 482 Cr.P.C. has been filed by applicant Anoop Keshari alias Anoop Chowdhary against State of U.P. and three others with a prayer for quashing impugned order dated 24.12.2019 passed u/s 146(1) Cr.P.C. as well as impugned order dated 28.11.2019 passed u/s 145(1) Cr.P.C. by the City Magistrate, Allahabad, in Case No. D-201902030007120 of 2019, Pratap Narain Mishra Vs. Anoop Keshari and others, P.S. Kotwali, District Allahabad, as well as entire proceeding of above mentioned case.
2. Learned counsel for applicant argued that the matter in question was not with regard to ownership and possession of any individual immovable property. Rather property in question is of Arya Samaj Temple having two colleges running with it and it is belonging of Arya Pratinidhi Sabha, U.P., Lucknow, under general superintendence of Sarvdeshik Arya Pratinidhi Sabha, New Delhi, for whole of India since mid of 19th century and everybody is having right and use to worship in above temple. There occurred no apprehension of breach of peace regarding above Arya Samaj Temple because O.P. No. 2 as well as applicant use to visit and worship in above temple. The dispute was regarding office of management and O.P. No. 2 was Secretary. In the year 2017 election of office bearers took place wherein the applicant was elected as Mantri to manage the affairs of above Arya Samaj Temple and its allied subject at Allahabad. This was duly recognized by State Unit at Lucknow. Representation was made by O.P. No. 2, but it was rejected by State Level Unit. In between two cases regarding criminal breach of trust and other mismanagement of property of Society, Arya Pratinidhi Sabha, was got lodged against O.P. No. 2 and one Pawan Jaiswal, wherein other co-accused preferred a proceeding u/s 482 Cr.P.C. before this court, which was rejected. Then after a Special Leave Petition was filed before Apex Court where the S.L.P. was rejected. Only after this failure to have some relief, manipulation was made by O.P. No. 2 under connivance with local police as well as Executive Magistrate. Thereafter a proceeding u/s 107/116 Cr.P.C. was undertaken and on this, report for proceeding u/s 145 Cr.P.C. was submitted before the City Magistrate wherein likelihood of breach of peace in Arya Samaj Temple, Chowk, Allahabad, was reported and the Magistrate in a routine way issued notices to both sides fixing a date. Though, there was no apprehension of breach of peace nor it was an individual immovable property, requiring any interference by Executive Magistrate u/s 145 Cr.P.C. Moreso, a civil suit was also pending on behalf of O.P. No. 2 for determination of right of Secretaryship of Management Committee of Arya Samaj Temple, Chowk, Allahabad, and its allied property. But the learned Magistrate, without applying his judicial mind, passed the impugned order u/s 145(1) Cr.P.C. Both sides appeared before the City Magistrate, therein, documents with reply were filed, wherein, it was specifically mentioned that no dispute regarding ownership or possession of immovable property of Arya Samaj Temple, Chowk, Allahabad, is there, because the Temple is under ownership of Almighty and worship of deities are done by each member belonging to Arya Samaj. The dispute was regarding office of management of Temple and it is within the domain of Assistant Registrar, Societies, as Arya Samaj Temple, Chowk, Allahabad, is a registered Society registered under Societies Registration Act. In case there arises a dispute regarding Management of the Society, it is to be referred to the Sub Divisional Magistrate concerned, who will decide the same. But the learned City Magistrate without making any appreciation of facts and law; by giving any reason, passed the impugned order of attachment of the Temple as well School Property of Arya Samaj Temple, Chowk, Allahabad, under section 146(1) Cr.P.C. whereby work of receivership has been assigned to consignee (supurdagar), which was not within the j
