Judgment:
ORDER
K.T. Thomas, J.
1. Juma Masjid Mosque and Hidayathul Madrassa situated in Perakkamanna village in Eranadu Taluk, unfortunately, became the subject-matters in a dispute between two factions of the Muslim community of the said village. One faction is called the 'Sunnis' and the other is called the 'Mujahids'. When the dispute reached an explosive situation the police feared imminent and severe breach of the peace. Hence the local police intervened and initiated prosecution proceedings against the members of the rival factions. Later they filed a report for taking preventive steps against some persons and on the basis of the said report, the Sub-Divisional Magistrate, Perintalmanna commenced proceedings under Section 145(1) Criminal P.C. (for short 'the Code'). He arrayed some of the members of the rival factions into two groups, one group in the A Party, and the other in the B Party and directed them as per his preliminary order to attend his Court on a date specified therein to file written statements and documents in support of their rival claims with regard to the possession of the said buildings. The Sub Divisional Magistrate passed a further order under Section 146(1) of the Code attaching the buildings involved in these proceedings and appointed the local village officer as the Receiver. Those two orders are under challenge hereby the first named person in the A Party.
2. The dispute arose between the two wings on the use of Malayalam language during the delivery of 'Kuthuba' (sermon) in the 'Juma' worship offered on all Fridays. The A Party adopted the stand that worship and the discourse should be in Arabic only. On the other hand the B Party contended that though the delivery of Kuthuba can be in Arabic, its Malayalam rendering also should be separately delivered. This was not acceptable to the A Party. The aforesaid dispute grew wider in course of time and members of the each faction began treating the other as rivals or even enemies and consequently, criminal cases had to be registered by the police against some of those members.
3. Sri Sujunapalan, learned Counsel for the petitioner contended that since the dispute in this case is only regarding the right of user of the Mosque and the Madrassa, proceedings could have been initiated only under Section 147 of the Code. If it is so, according to the learned Counsel, the attachment under Section 146 of the Code would be without jurisdiction. In support of his contention learned Counsel referred me to the decision reported in Ahammedkutty v. Kunjavaran 1967 Ker LT 391. A Single Judge of this Court had occasion to consider a dispute which is almost similar to the one involved in this case between two rival parties in respect of a Mosque. It was held that in such circumstances the proper section that should apply is Section 147 and not Section 145. Consequently, this Court set aside the order of attachment passed under Section 146 of the Code.
4. In answer to the above contention Sri Sreedharan Nair, learned Counsel for the contesting respondents, argued that if the dispute is only regarding the right of user of the mosque and madrassa, he too would concede that action can be taken only under Section 147 of the Code. In this case, according to the learned Counsel, the dispute has gone from the stage of mere right of user into one of possession by lapse of time and that the learned Sub-Divisional Magistrate was satisfied that the conditions necessary for initiation of action under Section 145 of the Code have been in existence.
5. Proceedings under Section 145 of the Code can be invoked when a dispute 'exists concerning any land' which is likely to cause breach of the peace. 'Land' includes buildings as well. Proceedings under Section 147 can be initiated when a dispute exists 'regarding any alleged right of user of any land' which is likely to cause breach of the peace. Though the distinction between the two fields is subtle, it is real. Sometimes the latter may overlap into the former and at some other times that may be the cause for the other, and in yet other times the latter may be the genesis which would eventually lead to the other. The mere fact, that the root cause of a dispute is the right of user of any land, does not mean that the nature of the dispute will ever remain in the same shape despite lapse of time.
6. In this case, the Sub Divisional Magistrate, in the prefatorial portion of his order, has stated that he is satisfied that 'a dispute which is likely to cause breach of the peace exists between 'A' and 'B' Parties concerning the possession of the property viz., the Juma Masjid Mosque and Madrassa'. In the later part of the order which contains the substance of the information on the basis of which the Magistrate acted, mention is made that the police have reported that 'the members of the B Party were claiming right to get the madrassa or the mosque to conduct their 'Kuthuba' and that those belonging to the A Party are against this'. In the concluding portion of the order the Magistrate has repeated that he is satisfied that there exists serious breach of the peace 'concerning the possession of the immovable property, viz., the mosque and the madrassa'. It is quite evident from the order that the Magistrate proceeded to take action under Section 145 of the Code on his conclusion that the dispute is one concerning possession of immovable properties. Learned Counsel for the petitioner submitted that on the facts and circumstances of this case, the Magistrate ought not have come to such a conclusion. The counsel contended that the dispute in this case is only regarding the right of user of the Mosque and the Madrassa. The learned Counsel has taken me through the police report. I think it is too early for me to pronounce, that too while exercising jurisdiction under Section 482 of the Code, that the Magistrate has gone wrong in reaching a satisfaction that the dispute is concerning possession of the Mosque and Madrassa. Perhaps, at the final stage after evidence is let in, he may or may not come to a different finding.
At any rate, at this stage, I am not inclined to interfere. This Crl. M.C. is therefore dismissed.