K.K. Basheer vs Sub Divisional Magistrate(RDO)

Ziyad Rahman A.A., J

This Writ Petition is filed by the petitioner challenging Exhibit P7 order passed by the 1st respondent/Sub Divisional Magistrate, Thalassery invoking his powers under Sections 145 and 146 of the Code of Criminal Procedure Code (Cr.PC).

As   per   the   aforesaid   order,   the   1st respondent appointed the Station House Officer, New Mahe, as a Receiver of the property and the building belonged to Muslim Relief Bhavan Society and the same was entrusted with him for management until the dispute between the two rival factions in respect of the possession over the said property is decided by a competent civil court.

The aforesaid order was passed by the 1st respondent acting upon a report submitted by the Sub Inspector of Police, New Mahe on 20.9.2021 to the effect that the dispute in connection with the aforesaid property is inducing breach of peace in the locality. This Writ Petition is filed challenging the aforesaid order.

The basic averments contained in the aforesaid writ petition are as follows: The petitioner is the ‘B’ party in Ext.P7 proceedings and the respondents 2 and 3 are ‘A’ party therein. It is contended by the petitioner that, initially, the property in question was purchased by the petitioner on his own fund and later, he transferred the aforesaid property when a Charitable Society named Peringadi Muslim Relief Committee was formed for the welfare of the Muslim in and around the Peringadi. The aforementioned transfer was made for charitable purposes. After a few years, the society above, which was registered under the provisions of the Societies Act, became defunct as most of the members were no more, and the others had become old and were not able to be active. In such circumstances, the general body convened on 8.6.2019, decided to dissolve the society, and the entire assets of the society, including the property in dispute in this litigation, have been transferred to the Peringadi Muslim Relief Committee Charitable Trust, which was formed for charitable purposes. The petitioner herein is the present Chairman of the trust. Consequent to such transfer, the building and the other assets are in exclusive possession of the said trust, and the said trust is paying the property tax also. However, some persons, on account of personal and political vengeance, attempted to trespass into the said building, and a complaint was also submitted by the 2nd and 3rd respondents herein before the local police making illegal claims on the aforesaid building. It is contended by the petitioner that the police took a partisan approach and threatened to close down the building. Therefore, the petitioner submitted O.S.No.269/2021 before the Munsiff Court, Thalassery, seeking an order of injunction against the 2nd and 3rd respondents from trespassing into the property of the trust. Exhibit P3 is the plaint submitted in the said case. It was also contended that the petitioner took out a Commission and when the Advocate Commissioner conducted an inspection in the premises, it was found that the petitioner was in possession of the building. The petitioner places reliance upon Ext.P5 report of the Commissioner to establish the same.

Subsequently, O.S.No.287/2021 was filed by respondents 2 and 3 along with two others before the Munsiff Court, Thalassery seeking a decree to declare that the transfer of assets of Muslim Relief Committee Charitable Trust is null and void and also for a decree restraining the petitioner and the other defendants in the suit from acting as trustees of Muslim Relief Committee Charitable Trust. Exhibit P6 is the aforesaid plaint.

While the dispute was pending consideration before the civil court, the petitioner was issued with Exhibit P1 notice by the 1st respondent wherein it was informed that the proceedings under Section 145 of Cr.PC is initiated. In response to the same, the petitioner appeared before the 1st respondent and submitted Exhibit P2 written statement objecting to the proceedings under Section 145 Cr.PC and asserting the claim of the Peringadi Muslim Relief Committee Charitable Trust upon the aforesaid property. However, without properly considering the contentions raised by the petitioner Ext.P7 order was passed. The petitioner submitted the Writ Petition in such circumstances.

The 2nd and 3rd respondents filed a detailed counter affidavit in response to the averments contained in the writ petition. One of the crucial contentions raised by the 2nd and 3rd respondents is that the property was purchased with the funds of the Peringadi Muslim Relief Committee, an organization registered under the Societies Act, 1860, but clandestinely the said property was purchased by the petitioner in his name. Later, as the other members of the society, including the 2nd and 3rd respondents, opposed such purchase, the aforesaid property was conveyed by the petitioner herein in favour of the Muslim Relief Committee as per document No.1709/92 of SRO, Chokli. Ever since, the property covered as per the said document, along with a three-storied building exclusively belonged to the Muslim Relief Committee, Peringadi. However, the aforesaid property, along with the assets of the Muslim Relief Committee, was transferred in favour of the said Muslim Relief Committee Charitable Trust, in which the chairman was the petitioner and the other trustees were the children and near relatives of the petitioner. According to the respondents, such transfer was affected at the instance of the petitioner herein based on a decision claimed to have been taken by the general body convened on 18.6.2019. It is the specific case of respondents 2 and 3 that the general body was not convened on 8.6.2019 as claimed by the petitioner. The complaint was submitted before the police in such circumstances. The 2nd and 3rd respondents also stated that they had already filed O.S.No.287/2021 before the Munsiff Court, Thalassery, seeking a declaration that the formation of the trust by the petitioner is null and void and they also sought consequential reliefs. The aforesaid suit is now pending consideration.

Heard Sri. Abdul Raoof Pallipath, the learned counsel for the petitioner, Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the State and Sri. Shibili Naha, the learned counsel for respondents 2 and 3.

The main contention put forward by the learned counsel for the petitioner is that the proceedings which culminated in Ext.P7 at the instance of the 1st respondent are without any jurisdiction. Therefore, it is liable to be set aside. It is pointed out that the matter is pending before a competent civil court; hence, the 1st respondent should not have entertained the application and invoked his jurisdiction under Section 145 of Cr.PC.

The aforesaid contention is stoutly opposed by the learned counsel appearing for respondents 2 and 3. According to the learned counsel for respondents 2 and 3, there is no impropriety on the part of the 1st respondent in exercising the powers vested upon him under Section 145 and 146 of Cr.PC. Therefore, the dismissal of the Writ Petition was sought.

I have perused the records and considered the submissions made from either side. The stipulations contained under Sections 145 and 146 of Cr.PC enables the 1st respondent to make necessary arrangements for putting a party in possession of a property or to appoint any person as Receiver of the disputed property until the dispute is resolved through a competent civil court in certain circumstances. The essential requirement for invoking the powers under Sections 145 and 146 Cr.PC is that the Executive Magistrate has to arrive at a subjective satisfaction based on a report of a Police Officer or upon other information that the dispute concerning the property in question is likely to cause a breach of peace in the locality. In this case, it is discernible from Ext.P7 order that a report to that effect has been submitted by the Sub Inspector of Police, New Mahe, on 20.9.2021 and the proceedings were initiated based on such report. Section 146 of Cr.PC provides that if the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties to it about the person entitled to the possession thereof. In this case, on perusal of Ext.P7 order, it can be seen that the 1st respondent had entered into a specific finding to the effect that, from the materials produced by both sides, he is unable to satisfy himself as to which of the party was in possession of the property which is the subject matter of the dispute as on the relevant date. The order of appointing a Receiver was passed in such circumstances. Going by the statutory stipulations contained in Section 146 of Cr.PC, such an order is well within his powers if he concludes that the documents placed before him do not enable him to arrive at a finding as to the person who was in actual possession of the property at the relevant time. Therefore, the impugned order cannot be said to be faulty and, therefore, cannot be treated as an order passed by the 1st respondent without any jurisdiction. It is also to be noted in this regard that even in Ext.P7 order, it is specifically made clear that the 1st respondent is satisfied from the materials placed before him that the aforesaid dispute is likely to cause breach of peace. It is also made clear that the aforesaid order shall be in force until the dispute is finally settled by a competent court.

It is discernible from the records that the petitioner, as well as the 2nd and 3rd respondents, have already approached the civil court by filing separate suits seeking relief for them. Both the aforesaid proceedings are pending, and as of now, no interim orders are passed. In George Syrian Church, Mannathur and Another v. Revenue Divisional Officer, Muvattupuzha and Others [2013(1) KLT 163]. In paragraph 6 of the above judgment, this Court observed as follows:

“6. Whether pendency of a civil suit over the subject - matter involved would interdict the executive Magistrate from taking preventive measures as enjoined under S.145 of the Code is the question to be considered on the submissions made by the counsel on both sides. Jurisdiction of the Civil Courts and Criminal Courts are different and they operate in different fields. Where the Civil Court has already seized of the matter or any interim order passed by the Civil Court prevails, normally, no proceedings under S.145 of the Code will survive. Similar is the case where a decision has been rendered by the Civil Court on the dispute involved over the land or water. However, in some cases even if any civil suit is pending, with no interim order affecting the right of the parties has been passed, or where application for injunction was rejected or such suit was at a very initial stage, if there is apprehension of imminent breach of peace, there is no bar in initiating proceedings under S.145 of the Code.”

In this case, as mentioned above, even though the civil suits are pending, no orders of interim arrangement during the pendency of the said civil suits are passed by the said court. In such circumstances, Ext.P7 order passed by the 1st respondent cannot be interfered with and under no circumstances the same can be treated as a parallel proceeding. This is mainly because the aforesaid order is only for making an interim arrangement which was passed when the 1st respondent arrived at a subjective satisfaction that the dispute between the parties is likely to cause breach of peace in the locality. Since such an exercise of powers is clearly envisaged under the provisions of Sections 145 and 146 Cr.P.C, no impropriety in passing such an order can be attributed in respect of the same. However, it is made clear that if the civil court passes any interim orders, the same shall be binding upon the 1st respondent as well, and the interim arrangement made as per Ext.P7 shall be subject to any such orders.

In such circumstances, I do not find any merit in the Writ Petition submitted by the petitioner. Hence, the Writ Petition is dismissed, confirming Ext.P7 with a clarification that the aforesaid order shall be subject to the interim order or final order, if any, passed by a competent civil court.