Ghulam Sibtain And Others v. Mt. Kaniz Khatoon And Another Opposite Parties.

1. There is a karbala in the town of Muzaffarpur the collection of offerings of which is the subject-matter of the proceedings now before me. The proceedings were drawn up on 4th October, 1919 by the Deputy Magistrate with respect to the collection of offerings at this karbala. The final order was passed on 5th December, 1919 declaring the opposite party in possession of the karbala. It appears that the petitioners wanted to be heard through their counsel but their prayer was refused.

2. An application has now been made in this Court assailing the crier of the Deputy Magistrate mainly on two grounds; firstly, that the Magistrate had no jurisdiction at all to start proceedings under Section 145 of the Cr PC, with respect to the collection of the offerings at the karbala, and secondly, that the Magistrate acted improperly in not hearing the arguments of the counsel appearing on their behalf, i.e, the require reacts of S. 145(4) were not fulfilled. In my opinion both these grounds have got force and are supported by authorities. The dispute with regard to collection of offerings at a temple or at a karbala cannot by any stretch of reasoning be said to be a dispute concerning land or water and therefore a dispute with respect to collection of offerings cannot come within the purview of S. 145.

3. The point was fully discussed in the case of Ram Saran Pathak v. Raghu Nandan Gir(1), which followed the earlier decision in the case of Guiram Ghoshal v. Lal Behari Das(2). As regards the second ground reference may be made to Cl. (4), Section 145 of the Cr PC. Cl. (4) runs thus:

“The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute peruse the statements so put in, hear the parties……”

“Hear the parties” means hear the evidence of the parties and arguments of counsel or pleaders appearing on their behalf, or arguments addressed by themselves, and if the Magistrate refuses to hear arguments he is not complying with the provisions of law which are imperative. This point again was discussed in the case of Hurendra Narain Singh Chowdhry v. Bhobani Prea Baruani(3). Both these grounds therefore succeed and the order of the Magistrate dated 4th October, 1919, as well as that of 5th December, 1919, must be set aside.

4. If the Magistrate still apprehends an imminent breach of the peace, the arm of the law is long enough to reach those who offend it, but proceedings must be taken in a manner which may be warranted and justified by the provisions of law.

V.S/R.K

5. Order set aside.