Harries, C.J:— This is a reference to a Full Bench made by a Bench of this Court in a matter arising out of proceedings under sec. 147 of the Code of Criminal Procedure.
2. The facts giving rise to these proceedings can be shortly stated as follows:—
In Chandernagore there is as deity named Sri Sri Govinda Jiu popularly known as Gopalji Thakur. The present petitioner claims to be the shebait of the Said deity and according to him the deity is a family deity. The opposite parties who are religiously minded Hindus of the District contend that Gopalji Thakur as a public deity and that the temple in which the deity is housed and the adjoining lands form a public, debutter and that from time immemorial the Hindus of the locality used to worship the said deity in the temple and offer puja to it. The opposite parties alleged that the petitioner had in recent times attempted to obstruct the public in the worship of this deity by keeping the door of the temple closed and refusing would be worshippers access thereto. As a result of this conduct on the part of the petitioner it is alleged that the feeling of the devout and religious Hindus had been inflamed and that there was a likelihood of a breach of the peace. The opposite parties applied to the Subdivisional Magistrate of Chandernagore for an order under sec. 144 of the Code of Criminal Procedure. The learned Magistrate after consideration of a police report and other materials before him eventually drew up proceedings under sec. 147 of the Code of Criminal Procedure. The petitioner had been called upon to show cause and it was after considering his representations that the learned Magistrate made the order of January 17, 1950, drawing up proceedings under the said section.
3. The petitioner thereupon moved the learned Sessions Judge of Hooghly under sea 438 of the Code of Criminal Procedure praying that the matter be referred to the High Court with a view to having the proceedings quashed. This application to the learned Sessions Judge was dismissed. Thereupon the petitioner filed this petition in this Court praying that the proceedings now pending before the learned Magistrate at Chandernagore be quashed upon the ground that the proceedings are wholly without jurisdiction. The petition came for hearing before a Bench of this Court and on behalf of the petitioner it was contended that no order under sec. 147 of the Code of Criminal Procedure could ever be made in such a case as this. That section, it was contended, dealt with disputes relating to the user of land. But no such dispute, St was said, existed in this case. The dispute admittedly was a dispute as to the right of religious-minded Hindus of the locality to worship this particular deity in this temple and it was urged that Where the dispute concerned merely a right to worship, it could not possibly be said to be a dispute relating to user of land and therefore it could not fall within the purview of sec. 147 of the Code of Criminal Procedure. In support of this contention a number of authorities of this Court were cited and there can be no doubt that those authorities do support the view that where a dispute relates to the worship of a deity in a temple the dispute does not fall within the purview of sea 147 of the Code of Criminal Procedure.
4. On behalf of the opposite parties a very considerable body of authorities from other Courts was relied on to support their argument that a dispute as to the right to worship in particular temple was a dispute relating to the user of land and therefore did fall within the provisions of sec. 147 of the Code of Criminal Procedure.
5. The Bench which heard the case were (inclined to doubt the correctness of the authorities of this Court and were inclined to take the almost unanimous view of the other High Courts that a dispute as to the right to worship was a dispute relating to the user of the land or the place of worship in question. As the Bench could not dissent from the views expressed in the decisions of this Court this reference was made to a Full Bench.
6. In accordance with the Rules of this Court questions were formulated for the opinion, of the Full Bench and the case was also referred for decision.
7. The two questions formulated for answer by the Full Bench were as follows:
“(1) Whether a dispute as to the right of worship necessarily involves a dispute as to the right of user of the land or temple (where the deity is located) at least for that purpose and is thus a dispute regarding a ‘right of user of land’ within the meaning of section 147, Cr. P.C and
(2) Even if the answer to (1) above be in the negative, whether the right to worship a deity, where it involves the right to enter the land or temple (where the deity is located) even for the limited purpose of such worship and no more, is a ‘right of user of land’ within the meaning of section 147, Cr. P.C”
8. After hearing argument in this case we have come to the conclusion that the points involved in these two questions can be formulated as one question. We have had the advantage of having the presiding Judge of the Bench which referred this matter to a Full Bench as a member of the Full Bench. In our view the questions referred to the Full Bench may be conveniently formulated in this question:
Does a dispute as to the right of worship in a temple or other place of worship necessarily involve a dispute as to the right of user of land within the meaning of that term in sec. 147 of the Code of Criminal Procedure?
9. In our view the question as reformulated Will raise all the matters which the Bench desire should be referred to the Full Bench.
10. Section 147 of the Code of Criminal Procedure is in these terms;
“(1) Whenever any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists regarding any alleged right or user of any land or water as explained in section 145, sub-section (2) (whether such right be claimed as an easement or otherwise) within the local limits of Ms jurisdiction, he may make an order in writing stating the grounds of his being satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate, and to put in written statements of their respective claims, and shall thereafter inquire into the matter in the manner provided in section 145 and the provisions of that section shall, as far as may he, be applicable in the case of such inquiry.
(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of 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 before the institution of the inquiry; or, where the right is exercisable only at particular seasons or on particular occasions,, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.
(3) If it appears to such Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right.
(4) An order under this section shall be subject to any subsequent, decision of a Civil Court of competent jurisdiction.”
11. It is clear that this section relates to disputes concerning the right of user of immovable property. The phrase “land or water” has by sub-sec. (2) of sec. 145 of the Code of Criminal Procedure been extended to cover buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. There can be no doubt therefore that a temple is laud within the meaning of that term in sec. 147.
12. What the opposite parties contend in this case is that they have a right to worship the deity in question in this temple. That right, it is contended, involves the right to enter upon the temple land and and the temple building and to perform acts of worship and devotion in the temple premises in the presence of the deity. The contention of the opposite parties is that they are entitled to use the temple land buildings for the purposes of worshipping Gopalji Thakur and that right of using the land for worship has been denied them by the present petitioner. The learned Magistrate was of opinion that the denial of this right might well lead to a breach of the peace and as he did not accept the contentions of the petitioner that the property in question was private and that the public had no right of access whatsoever to it, he directed proceedings to be drawn up with a view to deciding the matter upon evidence.
13. The view of this Court has been that a dispute as to the right of worship is not a dispute as to the right of user of any land. A dispute as to the right of user of any land need not necessarily be a dispute as to the existence or otherwise of an easement. The phrase “user of laud” in this section-is wider than the term “easement”. The claim may be to some user which cannot be termed an easement. Nevertheless, it is a claim which may come under this section.
Head Note (1)
14. It may well be that a dispute as to worship may not be a dispute as to the user of any land, if the dispute concerns a right to worship generally and not a right to worship at a particular place in a particular manner. For example, a sect of some community might take objection to prayers being offered in the worshippers' homes, in streets or open places, to a deity. The persons objecting might claim no right to the worshippers' homes or the streets or open spaces in which such worship was being offered. But they might deny the right of the worshippers to worship. Such a dispute would merely concern the right of worship and could not possibly, be said to be a dispute relating to the user of land.
15. The dispute as to worship, however, may be a dispute as to the worship of a deity in a particular temple or place. It appears to me that if such be the dispute then the dispute as to the worship necessarily involves a dispute as to the user of the land or building in which the particular deity is located.
16. In the present case the dispute between the parties relates to the right of members of the public to worship this deity popularly known as Gopalji Thakur, not generally, but their right to worship the deity in this particular temple. If such right is denied to the members of the public, that necessarily involves a denial of that right to enter upon the temple land and premises and perform puja or acts of worship or devotion thereon. It appears to me that a dispute as to the right of worship in a particular place must involve a dispute as to the right to use that property in a particular manner.
17. Mr. Debabrata Mukherjee who has appeared on behalf of the petitioner has contended that the user of the temple land and property can be divorced from the acts of worship of the deity located in that particular temple. He has stated that unless an entry on land is forbidden there cannot be a dispute relating to the user of the land. The dispute as to the right of worship is something entirely apart from the dispute as to the right to enter on land. Therefore he has urged that where the dispute is in substance a dispute as to the right to offer worship it cannot be a dispute as to the right to use land.
18. 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 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 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. 147 of the Code of Criminal Procedure.
19. The earliest case of this Court is the case of Guiram Ghosal v. Lal Behari Das (1) (I.L.R 37 Cal. 578). In that case it was held that sec. 147 of the Code of Criminal Procedure was not limited in its terms to easements, but related to any dispute concerning the right of user of land or water. With that part of the decision no complaint can be made, but the Bench further held that dispute concerning merely the right to act as pujari in a temple and not the right of user of the land on which it stands, is not within the scope of sec. 147 of the Code of Criminal Procedure.
20. In this case one of the parties claimed a hereditary right to perform the duties of a pujari of an idol in a certain temple and his right was denied by the other parties to the dispute. The dispute was a dispute relating to the right to worship and because that was so, the Bench came to the conclusion that it was not a dispute relating to the right of user of land. At page 580 the Bench however admitted “that it is impossible to perform the duties of a pujari without entering upon the land on which the temple is built. But it is the worship which is disputed, and not the use of the fond.”
21. The Bench seems to have overlooked the fact that if what is disputed is the right to worship a particular deity in a particular place, then the act of worship or that particular form of user of the place is denied. In the Bench case the pujari whose right to serve the idol was denied could not perform the duties which he claimed without entering upon the temple premises and performing various acts thereon. In other words, by claiming to be a pujari of the idol in question he claimed to use the temple premises in a particular manner and denial of that right appears to me to be a denial of a right to a particular form of user of the land. The worship in a particular place, as I have said, cannot be regarded as something entirely distinct from the user of that place.
22. This case was followed by a Bench of this Court in Ram Saran Pathak v. Raghu Nandan Gir (2) (I.L.R 38 Cal. 337), in which it was held that sec. 145 of the Code of Criminal Procedure included within its scope a dispute concerning the actual possession of a temple and the land on which it stood, but not one relating to the right to, and apportionment of the offerings given by, the worshippers. Such offerings were not profits arising out of the temple within the meaning of sec. 145(2). It was accordingly held that an order made under sec. 145 declaring a party entitled to the actual possession of a temple and its offerings was therefore intra vires as to the temple, but not as to the offerings.
23. We are not concerned in this Full Bench Reference with the question of offerings. But it appears to me that a dispute as to the right to enter a temple and to sit at a certain place to receive offerings or to collect offerings made, for example, at the foot of the idol may well be a dispute as to the right of user of the temple Itself. It may well be that where the dispute concerns the right to offerings made, that may not be a dispute as to the right of user of the temple. But in so far as this case decides that a right to worship is not a right of user of the temple then I cannot agree with it.; The case however is mainly concerned with other matters.
24. These earlier cases were followed by another Bench of this Court in Surendra Nath Banerjee v. Shashi Bhushan Sarkar* (3) (I.L.R 52 Cal. 959) in which it was expressly held that a dispute relating to the performance of worship of an idol, and not to the right of user of temple or land belonging to the idol, does not fall within the scope of sec. 147 of Code of Criminal Procedure.
B.B Ghosh, J.:— Who delivered the judgment observed at page 960:
“The whole question in controversy is whether the right claimed by the first party is a right of user of any land, as explained in section 145, subsection (2) of the Criminal Procedure Code The right is alleged to be a right to go into the temple and to perform the puja and to take a portion of the offerings made to the idol”.
25. Later at page 961 he observed:
“However that may be, it seems to me that the right to perform the puja of an idol, or to have a share of the offerings made to the idol, cannot be said to be a right of user of any land, as explained in section 145 of the Criminal Procedure Code, and, therefore, the present dispute cannot be considered to be one coming under the provisions of section 147 of the Code”.
26. The learned Judge admits that the right which was denied was a right to enter upon the temple premises and to perform puja therein, that is, to enter upon the temple premises and to do various acts thereon which constituted the particular form of puja in vogue to that particular deity. The right to perform, the puja was denied which involved a denial, of the right to enter the temple premises and to perform the various acts thereon which constituted the puja. It was a denial of the right to use the temple premises in that particular manner and therefore it appears to me that there was a dispute relating to the right to use the temple in a particular manner and therefore the dispute came within the ambit of sec. 147 of the Code of Criminal Procedure.
27. There is a mass of authority of other courts in which a view contrary to the views expressed in the three cases of this Court was taken. I do not think it is necessary to deal at length with these cases and I shall content myself with mentioning them. The earliest Madras decision is the case of Muhammad Musaliar v. Kunji Chek Musaliar (4) (I.L.R 11 Mad. 323) which is a Bench decision. In that case it was held that where a dispute likely to cause a breach of the peace was shown to exist concerning the right to perform a religious ceremony in a mosque the Magistrate could exercise the powers conferred by sec. 147 of the Code of Criminal Procedure.
28. This case was followed by a single Judge in Kader Batcha v. Kader Batcha Rowthan (5) (I.L.R 29 Mad. 237) and in A. Chidambara Gurukkal v. Sengoda Gowndan (6) (27 M.D.J 587).
29. A Similar view was taken by a single Judge of the Madras High Court in Sinnaswami Chetti v. Pannadi Palani Goundan (7) (A.I.R 1925 Mad. 779) in which it was held that where the real dispute between the parties was as to the right to worship in the temple and not as regards the possession of the temple the proper section under which action should be taken by the Magistrate to prevent a breach of the peace was sec. 147.
30. This view was again taken by a single Judge of the Madras High Court in Velappa Goundan v. Ramaswami Goundan (8) (A.I.R 1938 Mad. 537).
31. There is only one Madras case which takes a contrary view and that is a single Judge case, namely, Palaniyandi Pandaram v. Palaniappa Thevan (9) (34 I.C 651) in which the single Judge held that disputes with regard to management of a temple and the right to performance of puja therein were not disputes of the kind to which sec. 147 of the Code of Criminal Procedure applied. This case, as I have said, is contrary to all the other decisions of the Madras High Court including a Bench decision.
32. A view similar to the Madras view has been taken by the Allahabad High Court in the case of Daya Ram v. Emperor (10) (A.I.R 1930 All. 452) and by the Bombay High Court in In re: Pandurang Govind (11) (I.L.R 24 Bom. 527).
33. Nagpur has also taken the same view in the case of Kaji Abdul Majid Shah v. Mohammad Saheb Azizuddin (12) (A.I.R 1941 Nag. 171). In this case Bose, J., expressly decided that where a dispute regarding the right to receive the offerings at a shrine centered round and depended upon the right to sit in a particular spot the dispute related either to the possession of the land or to its use.
34. As I have said earlier a dispute as to who was entitled to offerings might not be dispute relating to the user of land. But as I have pointed out that if what was disputed was the right of a person to go to any part of a temple and there collect offerings from worshippers or to sit at any part of the temple and receive offerings such might well be a dispute relating to the right to use the temple.
35. The view expressed in the earlier cases of this Court cannot be maintained and in my judgment they should be overruled. In those cases the Benches concerned failed to appreciate that a right to worship in a particular place must involve the right to use that particular place for a particular purpose or in a particular manner. To deny the right of worship in a particular place is to deny the right to use that place in a particular manner. The right to worship, as I have said, cannot be regarded as something entirely apart from the place of worship, if what has to be considered is the right to worship a deity in a particular building or place. The view of the other High Courts must, I think, be accepted and that being so in must be held that dispute as to the right to worship a deity in a particular temple is a dispute falling within the ambit of sec. 147 of the Code of Criminal Procedure.
36. It was contended by Mr. Debabrata Mukherji that these proceedings should be quashed on a further ground, namely, that it had not been established that the opposite parties had exercised the right of worshipping Gopalji Thakur at this temple within three months of instituting the proceedings. The learned Magistrate has not yet heard any evidence; and of course if the opposite parties failed to show that they have not exercised their right within three months the proceedings then by reason of the proviso to sub-sec. (2) of sec. 147 will have to be dismissed. However, we cannot go into the matter at present because no evidence has been called.
37. It was further suggested that proceedings should not have been drawn up because there was no serious allegation that there would be a breach of the peace. The allegation was that persons of the locality who had been accustomed to worship this deity in the temple concerned were being denied that right and were becoming agitated. Any person with any experience of India would realise that a dispute such as this may cause very serious disturbances.
38. The learned Magistrate called for a police report and the police reported that breach of the peace might well occur. That being so the learned Magistrate was fully entitled to proceed. In any event it does not appear to me that these points are appropriate at this stage of the proceedings. This Court was asked to quash the proceedings on the ground that the Court had no jurisdiction to entertain them and as the dispute did not fall within the purview of sec. 147 of the Code of Criminal Procedure. In my view the dispute can well fall within that section and therefore I am bound to hold that no case has been made out to quash the proceedings.
39. For the reasons which I have given the question which we have re-framed must be answered in the affirmative and the petition for quashing the proceedings must be dismissed and the Rule discharged.
Banerjee, J.:— I agree.
Das Gupta, J.:— I agree.