AHAMMADKUTTY Vs. KUNJAVARAN
HIGH COURT OF KERALA
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(1.) The petitioners are A-party Nos. 2 to 10 in M. C. 3/67 on the file of the Executive First Class Magistrate of Malappuram. The question arising in the case is whether Khutba at the mosque should be rendered in Malayalam for the benefit of the worshippers. The B-party represents that section of Muslims who want the Khutba to be translated into Malayalam; but that demand is not acceptable to A-party and the section whom they represent. The parties were agreed that the matter may be referred to the decision of ulmas, suggested by the two parties and that fact was recorded by the Executive Magistrate; but in spite of that, proceedings were taken by the learned Magistrate under S.145 Cr. P. C. and a direction was given to the Sub Inspector of Police, Manjeri to attach the mosque. It is against that order that this petition has been filed.
(2.) The order of attachment is unsustainable on the very face of it, because the matter in dispute is not one justifying the initiation of proceedings under S.145 Cr. P. C. The proper section that should apply is S.147 Cr. P. C. S.145 can apply only in cases where a dispute exists concerning any land or water or the boundaries etc. Here, on the other hand, the dispute relates to the manner in which the Khutba is to be performed at the Friday Congregation in the mosque. Thus the real dispute between the parties is as to the nature of the worship at the mosque and not as regards the possession of the mosque or even as to the right of worship. In such cases, as has been held in Sinnaswami Chettiar v. Palani Goundan ( AIR 1925 Mad. 779 ) and in a series of other decisions the proper section that is applicable is S.147. This position was not disputed by the learned counsel for the respondents; but he however maintained that even if the proceedings are treated as falling under S.147, for the prevention of an imminent breach of peace, the court is competent to order attachment of the concerned property. The contention cannot be sustained. S.147 Cr. P. C. does not contemplate the attachment of the property. Moreover, it is not correct to say that the property in dispute in the present case is the mosque which has now been placed under attachment. There is no dispute at alias to the possession or management of the mosque. The dispute is only in respect of the way in which Khutba is to be performed. A Division Bench of this court in Philip v. Velayudhan ( 1964 KLT 29 ) has held that S.561A Cr. PC. cannot be invoked to validate an attachment issued under S.147. It was also held that under S.147(1A) the court has no power of attachment of the land in relation to which a dispute of right exists. The learned Judges have observed that: "An order of attachment is not contemplated nor provided for by S.147, and it is not proper to pass such an order in exercise of the powers under S.561A". The order is hence improper and has only to be vacated.
In the result, the order of attachment is set aside and this petition is allowed. It is open to the aggrieved party to move the learned Magistrate for the initiation of proceedings under S.147 Cr. PC., if so advised.;
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