ORDER
The order made by the Taluka Executive Magistrate on 05.04.2011, confirmed by the learned Judge of Fast Track Court-III at Mandya, has been called into question in this petition.
2. I have heard learned counsel for parties and I have gone through the impugned orders.
3. The dispute between contesting parties relates to performance of jathras and also right to receive offerings from public to expend for jathras and performance of poojas in Sri Chowdeshwari Temple of Hemmanahalli Village, Maddur Taluk.
4. The II-respondent claims such right as a hereditary right. The petitioners claim such a right as trustees.
5. In my considered opinion, the dispute between parties viz., one party asserting customary right and the other party asserting right of trustees cannot be adjudicated upon under section 145 Cr.P.C, which is primarily intended to pass a tentative order to prevent breach of peace and tranquillity concerning any land or water dispute.
In the case on hand, parties are not claiming any right over land or building. On the other hand, they are asserting their right to receive the offerings/donations to temple and their right to perform poojas and annual jathra of the above said temple.
6. The learned counsel for II-respondent has relied on a decision of Calcutta High Court, reported in A.I.R (38) 1951 Calcutta 93 (in the case of Dhirendra Nath Das v. Hrishikesh Mukherjee).
7. In the aforestated judgment, it is held that a dispute as to the right of worship in a temple or other place of worship necessarily involves a dispute as to the right of user of land within the meaning of that term under section 147 of Criminal Procedure Code, 1898.
In the case on hand, it cannot be disputed that temple is a public temple. None of the parties can claim exclusive right. The dispute relates to right to receive offerings/donations from public to expend for annual jathras and performance of pooja in temple. Therefore, this dispute cannot be adjudicated upon by the Taluka Executive Magistrate under section 145 Cr.P.C
8. section 145 Cr.P.C, provides for procedure to deal with a dispute concerning land or water, which is likely to cause breach of peace. section 145(6) Cr.P.C, reads thus:-
“145.(6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).”
In the case on hand, the Taluka Executive Magistrate in the final order has held that right to perform pujas, jathras and etc in Sri Chowdeshwari Temple at Hemmanahalli Village, Maddur Taluk, belong to descendants of one late Kempegowda and they are declared as holders of right to perform pooja and jathras of the temple. Further, it is stated that if descendants of above said late Kempegowda were to consent, the contesting respondents namely C. Chowdaiah, Dodda Kempegowda, Kenchappa and others, in terms of Trust Deed executed on 24.02.2011, can perform poojas, jathras and other religious duties without disturbing peace and tranquillity.
9. In my considered opinion, rights asserted by the parties do not fall within the purview of section 145 Cr.P.C Even otherwise, the order of Taluka Executive Magistrate is not in conformity with the provisions of section 145(6) Cr.P.C The learned Fast Track Judge has not even referred the provisions of section 145 Cr.P.C, to find out whether the dispute between parties falls within the purview of section 145(6) Cr.P.C, and the Taluka Executive Magistrate had jurisdiction to pass the impugned order. Therefore, the impugned orders passed by the Taluka Executive Magistrate in MAG:CR No. 188/2010-11 on 05.04.2011 and the learned Judge of Fast Track Court-III at Mandya on 21.12.2011 in Crl.R.P No. 85/2011 cannot be sustained.
10. In the result, I pass the following:-
ORDER
The petition is accepted. The impugned orders passed by the Taluka Executive Magistrate in MAG:CR No. 188/2010-11 on 05.04.2011 and the learned Judge of Fast Track Court-III at Mandya on 21.12.2011 in Crl.R.P No. 85/2011 are set aside. If the Tahsildar/Taluka Executive Magistrate finds that performance of jathra by the contesting parties is likely to disturb public peace and tranquillity, he has to proceed under section 107 Cr.P.C, and take steps to maintain law and order during jathra festival. A copy of this order shall be sent to the Tahsildar, Maddur Taluk, Mandya District, forthwith.
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