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Judgment
Honorable Mr. Justice K. Ravichandra Baabu
In this writ petition the petitioner has challenged the order passed by the second respondent dated 31.05.2011 and consequently, seeking for a direction to the 3rd respondent to provide adequate police protection for the smooth and peaceful celebration of annual festival of Sree Maha Mariyamman Temple, Chinthamanipatti, Keelapaguthi Village, Kadavur Taluk on 14, 15, 16 June 2011. The case of the petitioner is that he is the heredity priest of Sree Maha Mariyamman Temple, Kelepaguthi Village, Chinthamanipatti, Kadavur Taluk. The said temple is an ancient temple aged about 300 years. The said village consists of nearly 170 families and all of them are joining together every year to celebrate the temple festival, without any difference of opinion. The annual celebration of the temple festival falls in the month of Vaikasi. The 4th respondent is the erstwhile panchayat president of the said village and was participating in the said village festival all these years without making any demur. One Karuppannan, the uncle of the 4th respondent attempted to construct a private temple in a Government land, which is lying adjacent to the said Sree Maha Mariyamman Temple. The said act of the Karuppannan was vehemently objected by the village people. The District Collector, Karur, also based on the demand of the village people, restrained the said Karuppannan from constructing the other temple. A suit in O.S. No. 234 of 2010, on the file of the District Munsif Court, Kulithalai, restraining the said Karuppannan from constructing the temple was also filed by the worshippers of the Sree Maha Mariamman Temple. An interim injunction was granted in the said suit on 24.03.2011. In view of such development, the 4th respondent and all his relatives nurtured grudge against the Sree Maha Mariamman Temple and started giving trouble to the administration of the said temple. When the people of the village, as usual, proposed to conduct the temple festival during the first week of June, the 4th respondent made false complaint before the 3rd respondent and based on the same, the 3rd respondent referred the matter to the second respondent. A peace committee was formed by the second respondent. In the peace committee meeting held on 17.05.2011, the elders of the village participated and extended their full co operation to maintain peace in the village. It was also stated before the second respondent during the peace committee meeting that the temple festival has to go on as per the schedule and more particularly, the petitioner herein submitted before the second respondent that he is not very particular about presiding over the temple festival and is concerned only in solving the dispute. However, the 4th respondent refused to heed any of the requests made by the villagers and created uproar with a sole aim not to allow the temple festival to go on. Consequently, the peace committee failed in its attempt to bring peace in the village. As the festival to the Sree Maha Mariamman Temple has to take place without any break, the petitioner made a representation to the respondents 1 to 3 on 24.05.2011, seeking for protection to the celebration of the temple festival by apprehending of untoward incidents at the hands of the 4th respondent. Instead of providing the police protection for the conduct of the festival, the second respondent passed the impugned order restraining the entire festival celebration of Sree Maha Mariamman Temple till the settlement of dispute between the petitioner and the 4th respondent. Hence, the petitioner approached this Court by way of this writ petition challenging the said order of the second respondent, dated 31.05.2011.
Notice of motion was ordered by this Court on 07.06.2011. After notice, the respondents entered appearance through their respective counsels. The second respondent filed a counter affidavit. The 4th respondent though entered appearance through counsel, he had not chosen to file any counter affidavit.
In the counter affidavit filed by the second respondent, it is stated that the festival to Sree Maha Mariamman Temple is being celebrated annually in the month of Vaikasi. The 4th respondent gave a complaint to the second respondent on 11.05.2011 by stating that he is the Hereditary Trustee to Sree Sakthi Vinayagar Temple and Sree Mahasakthi Mariyamman Temple and some of his enemies, namely, the petitioner herein and others were going to celebrate the temple festival by excluding the 4th respondent and his ancestors and consequently, requested the second respondent to restrain them from celebrating the temple festival. It is further stated by the second respondent that on the very same day, a letter from the Sub-Inspector of Police, Chinthamanipatti was also received stating that a dispute had arisen between 4th respondent and another group of people in celebrating the temple festival, leading to law and order problem in the village and consequently, requested the second respondent to arrange for a peace committee meeting. Therefore, notice to both sides was issued by the second respondent, informing that a peace committee meeting would be held on 17.05.2011. In the said meeting no compromise was reached between two groups. Therefore, the second respondent called for a report from the 3rd respondent regarding the law and order problem in celebrating the temple festival. As the police report was adverse, in order to prevent the law and order problem, the second respondent has passed the present impugned order on 31.05.2011, restraining both groups from celebrating the temple festival till their dispute is settled.
this Court after ordering notice of motion and after the parties have entered their appearance, by order dated 20.06.2011, referred the matter to Mediation Centre and directed the parties to appear before the same on 24.06.2011. The Tamil Nadu Mediation and Conciliation Centre attached to this Bench taken the matter as Mediation Case No. 210 of 2011 and submitted a report on 10.11.2011, by stating that the mediation had failed despite the mediation was held on several occasions. It appears from the said report that neither the 4th respondent nor his counsel was present before the Mediator. Even when the matter was posted before this Court on several occasions, the counsel for the 4th respondent was not present continuously and no counter affidavit also has also been filed by the 4th respondent.
Mr. M. Ajmalkhan, the Learned Counsel for the petitioner has argued that the impugned order passed by the second respondent though not stated the provision of law, under which, it was passed, yet it has to be presumed that the same was passed u/s 144 of the Code of Criminal Procedure. Therefore, the Learned Counsel argued that the second respondent can exercise such powers u/s 144 of the Code of Criminal Procedure, if he is specially empowered by the state Government. The Learned Counsel further argued that as there is no material available to show that the second respondent was empowered by the state Government, the order passed by the u/s 144 of the Code of Criminal Procedure, is totally without jurisdiction. He further argued that even assuming that the second respondent has got power u/s 144 of the Code of Criminal procedure, to pass the impugned order, by virtue of sub clause 4 of Section 144 of the Code of Criminal Procedure, the impugned order can remain in force only for two months and thereafter, it can be extended by another six months, that too, only by a notification issued by the Government. By relying on those provision u/s 144 of the Code of Criminal Procedure, the Learned Counsel for the petitioner has argued that the impugned order passed by the 2nd respondent by restraining the temple function till the settlement of dispute between the parties is beyond his jurisdiction and competent once.
The Learned Counsel for the petitioner also submitted that the Sri Maha Mariamman Temple and Maha Sakthi Mariamman Temple are not one and the same and they are two different temples. As the petitioner is conducting the temple festival all these years he must be permitted to conduct the festival and the petitioner is not having any objection against the 4th respondent for him to participate in the temple festival.
Per contra, the learned Special Government Pleader appearing for the respondents 1 to 3 argued that the impugned order came to be passed by the second respondent only in order to maintain the law and order and to see that the peace prevails in the village as it was apprehended by the 3rd respondent that by permitting the celebration of the temple festival, law and order problem would arise as there was a dispute between two groups of people in the village. The learned Special Government Pleader also argued that the very fact that the peace committee convened by the second respondent failed would show that the parties are not interested in conducting the festival peacefully and therefore, the impugned order passed by the second respondent is justifiable more specifically in the interest of the general public.
Heard the Learned Counsels for the respective parties.
The petitioner claims to be the heredity of Sree Maha Mariamman Temple Kelepaguthi Village, Chinthamanipatti, Kadavur Taluk. It is seen from the facts placed before this Court that the said temple festival used to be celebrated during the month of ''Vaikasi''. According to the petitioner, when the village people proposed to conduct the temple festival as usually, during the month of Vaikasi, a trouble started through the 4th respondent, who was adamant in not allowing the temple festival to go on, in view of a dispute with regard to the construction of another temple by his uncle, by name, Karuppannan. It is also seen that based on the complaint received from the fourth respondent, the second respondent conducted a peace meeting on 17.05.2011 and failed in his attempt to bring peaceful atmosphere in the village. Consequently, the first respondent without having any other alternative and in order to maintain the law and order in the village has passed the present impugned order on 31.05.2011, thereby preventing both the groups from celebrating the temple festival till their dispute is settled.
No doubt, that the second respondent is duty bound to prevent the law and order problem as the Executive Magistrate and has exercised his power, as contemplated under the Code of Criminal Procedure, 1973. He passed the impugned order directing the parties to abstain from celebrating the festival till their dispute is settled. Though the second respondent has not specifically stated in the impugned order under what provision of law he has exercised his power yet from the reading of various provisions under the chapter 10 of the Code of Criminal procedure, it can be safely concluded that the second respondent had exercised his powers only u/s 144 of the Code of Criminal Procedure. Admittedly no preliminary order having been passed in this case, as contemplated u/s 145(1) of the Act, there is no other provision except the one u/s 144 of the Code of Criminal Procedure for the second respondent to pass the impugned order. For easy reference of the said provision of section 144 of the Code of Criminal Procedure, which is reproduced hereunder:
Power to issue order in urgent cases of nuisance or apprehended danger.-(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
From the reading of the said section 144 of the Code of Criminal Procedure, it is seen that an order made under the said Section shall remain in force only for two months and if the State Government considered it necessary for extending the said order for a further period, it can do so by issuing a notification, that too, by not exceeding the period more than six months from the date on which the order made by the Magistrate would have expired. Thus, by applying the provision contained u/s 144(4) and proviso made thereunder, it could be seen that the order passed by the second respondent got lapsed automatically after the expiry of two months from 30.07.2011. There is no material placed before this Court by the respondents 1 to 3 indicating that the said period is further extended by six months by way of any notification issued by the State Government. It is also not the case of the respondents 1 to 3 that the period is further extended by six months as provided under the proviso to Section 144. Therefore, as provided under sub clause 4 of the Section 144 no order u/s shall remain in force for more than two months from the making thereon and consequently, I have no hesitation in holding that the impugned order passed by the second respondent got lapsed on 30.07.2011 itself and consequently, the same is not in force after such date.
No doubt, the impugned order passed by the second respondent technically lost its forciblity. At the same time, this Court cannot close its eyes to the law and order problem apprehended by the law enforcing authority in the event of permitting the temple festival to be conducted by any of the parties. Therefore, only in order to ascertain the present state of affairs and also to see as to whether any possibility of settling the dispute between the parties is there, the matter was adjourned on several occasions by this Court. Unfortunately, the forth respondent or his counsel has not turned up in all those occasions. Even when the matter was earlier referred by this Court to the Mediation and Conciliation Centre, it is seen that the mediation failed in spite of several sittings. Therefore, it could be seen that the 4th respondent is not interested in settling the dispute. His absence before this Court on all occasions also exhibits his intention in seeing that the temple festival is not conducted at any cost. On the other hand, the petitioner in his affidavit has specifically averred that he is interested in seeing that the festival is conducted by some one without any break and he is not very particular on presiding over the temple festival. By considering all these facts and circumstances and also by taking note of the sentiments of the people of the village and also by keeping in mind with regard to the necessity for maintaining law and order in the village, I pass the following order:
The impugned order dated 31.05.2011 passed by the second respondent ceased to exist after the expiry of two months from 31.05.2011 and the same has no force thereafter, against the parties on whom the order was made.
However, the first respondent is directed to convene a fresh peace committee meeting in the village, within three weeks from the date of receipt of a copy of this order, as a last chance to the rival groups to settle their disputes amicably. After conducting the said meeting, if, in the opinion of the first respondent, no compromise is arrived at between the parties, the first respondent is directed to proceed as per the directions given below:
(i) The first respondent is directed to conduct the annual temple festival of Sree Maha Mariamman Temple in the month of Vaikasi by inviting all the villagers to participate in the festival without there being and discrimination.
(ii) The second respondent is to assist the first respondent in conducting the said festival in peaceful manner.
(iii) The District Superintendent of Police of Karur District is directed to provide sufficient police force on the day of festival as well as a week before and thereafter, at the village in order to ensure that no law and order problem arises.
If no compromise is arrived at the peace committee meeting, it is open to the respective parties to go before competent civil Court and settle their disputes and till such time the above arrangement as indicated above will continue.
With these directions, the writ petition is ordered, accordingly. Consequently, connected miscellaneous petitions are closed. No costs.