Allowed

Ashoknath Chela Kevalnath v. State of Rajasthan

Rajasthan HC16 Nov 2022CRLMP/1949/2022

Case brief

AI extract

What is this about?

The High Court of Jodhpur allowed a criminal miscellaneous petition to quash an order attaching disputed monastery property and appointing a receiver. The Court held that since the petitioner had peaceful possession for twenty years with no rival in possession, there was no dispute requiring Section 145 Cr.P.C. The order was quashed as an abuse of process of law.

What did the court decide?

Quashed the order of attachment and appointment of receiver. Directed Executive Magistrate to release property and restore possession to the petitioner within thirty days.

Ashoknath Chela Kevalnath Vs State of Rajasthan — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Criminal Misc(Pet.) No. 1949/2022

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Ashoknath Chela Kevalnath, Aged About 42 Years, R/o Navleshwar Math Nai Sadak, Jodhpur.

¶4

----Petitioner

¶5

Versus

¶6

1.	State Of Rajasthan, Through Pp
2.	Shri Yogi Vilasnath Chela Yogi	Shivsatyanath, Aged
	About 47 Years, B/c Nath, R/o Bikaner.	Navleshwar Bagichi,

¶7

----Respondents

¶8

For Petitioner(s)	: Mr. Suresh Kumbhat
For Respondent(s)	: Mr. SS Rajpurohit, PP
	Mr. Vineet Jain Sr. Advocate assisted
	byMr. Pravin Vyas

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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16/11/2022

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The instant criminal misc. petition has been preferred by the petitioner Ashoknath Chela Kevalnath for quashing of the order dated 04.04.2022 passed by the Additional Session Judge No.7, Jodhpur Metro in Criminal Revision Petition No. 28/2022 whereby he affirmed the order dated 23.3.2022 passed by the Additional District Magistrate No.1, Jodhpur in Criminal Misc. Case No. 1/2021 who passed an order to attach the property in question and appointed the Inspector, Devesthan Department, Jodhpur as a receiver with a specific direction to take possession over the property in question.

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(2 of 11) [CRLMP-1949/2022]

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Bereft of elaborate details succinctly stated the facts of the case are that the SHO Police Station, Udaimandir, Jodhpur Commissionerate submitted an application under Section 145 of the Cr.P.C. before the ADM City, Jodhpur averring that there was a dispute between party no.1 and party no.2 regarding the property of "Nath Community" referred as Navleshwar Monastery. The land of the Monastery was gifted by His Highness of Jodhpur to Shri Bananath Ji who constructed a small Monastery on the land and became the first "Gadipati". After Shri Bananath Ji his disciple Shri Navalnath became "Gadipati". Exruler of the Jodhpur issued a patta in the year 1927 for the property of Monastery. The chronology of the succession among disciple has been mentioned in the complaint. It is stated that after having discuss with the monk and saints, in the year 2009 while being the head of Monastery Shri Kevalnath Ji decided to elect Shri Premnath Ji as the next "Gadipati" from Ramdeora Sheva Trust. During his tenure in the year 2015, Shri Ashoknath Ji was proposed to be appointed as the next "Gadipati" for the Monastery. Shri Kevalnath also wrote a letter to Nath Samaj Panchayat Authority to appoint the next "Gadipati". Shri Premnath Ji died on 15.12.2019 as "Gadipati" of the Monastery therefore on 31.12.2019, Shri Ashoknath Ji was appointed as the next "Gadipati" of the Monastery. In the meantime, after the demise of Shri Premnath Ji, the head of the Ramdeora Sheva Trust, Shri Jagannath wrote a letter of authority in favour of Yogi Vilasnath disciple of Shivsatyanath to be appointed as the

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(3 of 11) [CRLMP-1949/2022]

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"Gadipati" of the Navleshwar Monastery but the Nath Samaj Panchayat had already appointed Shri Ashoknath as "Gadipati" thus, it led a rift between two communities as a result of which cross cases were registered. Both the parties claimed and to have right and alleged documents of the other party as fraudulent in nature. In the meantime, Shri Vilasnath Ji raised the matter that he will take the seat of "Gadipati" on 30.1.2021 and it was alleged that he tried to take the seat by using force against Shri Ashoknath Ji. Thus, it is averred in the complaint that the dispute between two disciples regarding their authority to be appointed as "Gadipati" of the Navleshwar Monastery which may lead to create ruckus in the society and may hamper peace and tranquility. By filing the complaint, the SHO apprehended that there is likelihood of breach of peace and happening of any untoward incident.

¶17

Upon receipt of the complaint, the Executive Magistrate ordered to register a case under Section 145 of the Cr.P.C. and directed to issue notices to party Nos.1 and 2 vide order dated 18.1.2021. During the course of the inquiry, party No.1 Sh. Ashoknath etc. submitted a detailed reply claiming over the questioned property. However, the party No.2 Shri Yogi Vilasnath etc. who is respondent in this petition has not chosen to file any reply but instead thereof oral submissions were made on his behalf.

¶18

After hearing counsel for the parties, the learned Executive Magistrate observed that tension among parties has spreaded

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(4 of 11) [CRLMP-1949/2022]

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there in regard to right of possession and, therefore, reasonable apprehension of breach of peace has been expressed, thus noticing the above fact and in order to prevent the breach of peace, the learned Magistrate allowed the complaint and directed to attach the property in question and the Inspector, Devasthan Department, Jodhpur was appointed as a receiver of the questioned property. He was also directed to take possession of the property marked as ‘A,B,C & D’ in his possession vide order dated 23.3.2022.

¶21

Aggrieved by the order dated 23.3.2022, the petitioner herein challenged the legality, correctness and propriety of the order of attachment of the property and appointment of a receiver by filing a criminal revision petition but the same was rejected vide order dated 4.4.2022 passed by the learned Sessions Judge No.7, Jodhpur Metro.

¶22

Shri Suresh Kumbhat learned counsel submits that learned Executive Magistrate as well as the learned Additional Sessions Judge has failed to appreciate the correct, legal and factual aspects of the matter and thus the learned Additional Sessions Judge has erred in passing the order impugned. The Courts below have not acted in true spirit of Sections 145 Cr.P.C. and 146(1) Cr.P.C.. It is submitted that the learned Courts below have passed the orders without truly considering the material available on record and prevailing legal situation. It is submitted that the petitioner-party were in peaceful possession over the questioned property for last more than twenty years and it was not the

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(5 of 11) [CRLMP-1949/2022]

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question before the Executive Magistrate as to which party was in possession over the disputed land despite thus allowing the complaint and passing order under Section 146(1) Cr.P.C. was perverse and illegal. Neither the opposite party were in possession in property nor they had any legitimate right to have the possession. Since there was no question of possession, therefore, the learned Executive Magistrate must refrain from passing an order under Section 146 (1) Cr.P.C.. The learned Additional Sessions Judge has also failed to appreciate and examine the legality and correctness of the order and therefore both the orders are liable to be quashed and set aside.

¶25

Per contra learned counsel Shri Vinit Jain assisted by Mr. Pravin Vyas and learned public prosecutor opposed the contention made on behalf of the petitioner. It is argued that when the SHO Police Station, Udaimandir, Jodhpur was of the view that in respect of the possession of the disputed land the peace of the public may be breached and strong apprehension have been averred in the complaint with sufficient material along with the complaint, thus in that situation, the learned Executive Magistrate has not erred in passing the order impugned. The matter has rightly been examined by the learned Additional Sessions Judge and therefore the same requires no interference by this Court. Shri Jain urged that the sentiment of a group of the community will be hurt if Shri Yogi Vilasnath and his followers will make an attempt to take forcible possession and therefore the apprehension of breach of peace and tranquility was writ

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(6 of 11)

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[CRLMP-1949/2022]

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large. He thus supports the orders passed by the learned Executive Magistrate as well as learned Additional Sessions Judge.

¶29

Heard learned counsel for the parties and perused the material available on record.

¶30

The law on this point is not res integra that whenever an Executive Magistrate is satisfied from a report of the Police Officer or upon other information that a dispute which is likely to cause breach of peace exists, concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims with regard to the fact of actual possession of the subject of dispute.

¶31

Upon appearance of the parties, the Executive Magistrate is supposed to consider the claims of the rival parties in respect of the fact of actual possession of the subject of dispute. It is the requirement of law that prior to passing any order of attachment of the property and appointment of a receiver, the Magistrate should apply his mind as to whether there are emergent circumstances and eminent danger of breach of peace or not and order of attachment of property and appointment of a receiver under Section 146(1) Cr.P.C. can be passed only after conducting a preliminary inquiry under Section 145(1) Cr.P.C. The Executive Magistrate is not supposed or rather authorized by the law to

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(7 of 11) [CRLMP-1949/2022]

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adjudicate the right or title of any party over the property in question. The Executive Magistrate is not empowered to pass order of taking the possession from one party and deliver it to the other party or to the receiver, if the question of possession is not under dispute. There is a distinction between right to have possession and question of possession. Right to possession can be decided by a competent Civil/Revenue Court after adjudication of the issues and pleas of the parties to the lis and then it can pass a verdict as to which party has a right to have possession but when it comes to question of possession and the Executive Magistrate is satisfied that none of the parties were then in such possession or the Magistrate was unable to satisfy himself as to which of them was in possession of the subject of dispute and by placing facts strong apprehension has been shown regarding breach of peace and tranquility in respect of the conflict of possession then the Executive Magistrate can very well exercise power under Sections 145 Cr.P.C. and 146(1) Cr.P.C. The Executive Magistrate is required to record satisfaction of emergent nature of the case as well as eminent danger of breach of peace or tranquility before passing an order of attachment.

¶34

Here, in this case what is emanating from the record that since around last twenty years, the petitioner party was in possession of the property in dispute and the respondent No.2 private party was claiming his right over the property to have possession but in fact was not in possession and, therefore, efforts were made by respondent No.2 for taking possession of

¶35

(8 of 11) [CRLMP-1949/2022]

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the property which is very much evident from the averments made in the complaint itself wherein it is specifically mentioned as under;

¶37

“vc vxj ;ksXkh foyklukFk us tksj tcj nLrh bl eB dk xknhifr cuus dk iz;kl fd;k rks bl eB esa nksuksa i{kksa ds cgqrk;r esa yksx ,df=r gksaxs vkSj nksuksa i{kksa ds bl ckr dk fojks/k djus ij cgqr cMh vugksuh ?kVuk ?kfVr gksus o ekSds ij ifj'kkfUr Hkax gksus dh iw.kZ lEHkkouk gSA”

¶38

An application dated 6.4.2022 is available on record which was filed by Shri Yoginath before the ADM City, Jodhpur reflecting therein that the party No.2 was not in possession of the questioned property.”

¶39

“;g gS fd vki Jheku~ }kjk ikfjr vkns'k 23&03&2022 dks ikfjr fd;s gq;s vkt yxHkx 14 fnu gks pqds gS ij vkt fnu rd fjlhoj Jh nhid nos us vkids vkns'k dh ikyuk esa mDr Jh uoys'oj eB lkstrh xsV dk dCtk ugha fy;k gSA”

¶40

Vide letter dated 13.4.2022, the Assistant Commissioner Devasthan Department filed a compliance report before the ADM City, Jodhpur averring therein that in pursuance of the order impugned, he has taken possession of the questioned property from the petitioner Shri Ashoknath on 12.4.2022. The relevant extract is felt appropriate to reproduce here in below which is as under;

¶41

“ekuuh; U;k;ky; ,oa izklafxd i= ds vkns'k dh ikyuk esa of.kZr dqdZ lqnk ifjlj ,chlhMh dk dCtk v'kksd ukFk ls fnukad 12-04-2022 dks nksigj 04%00 ls 5-50 rd es ys fy;k gSA”

¶42

(9 of 11) [CRLMP-1949/2022]

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The another fact relevant for consideration would be that the complaint under Sections 145 and 146 (1) Cr.P.C. was preferred on 18.1.2021 and the Executive Magistrate passed the order on 23.3.2022 and in the meantime and until 12.4.2022, the petitioner party were in peaceful possession of the questioned property. It would be pertinent to mention here that no preventive measures and criminal proceedings under Sections 107, 116 and 151 Cr.P.C. were instituted during this period. Right from the inception, no report of affray, riot, forming unlawful assembly, voluntarily causing hurt, causing mischief, making an attempt to murder or murder were lodged or reported to have happened. This fact is sufficient enough to observe that there was no danger or apprehension of breach of peace. Presence of eminent danger of breach of peace and emergent circumstances are sine qua non to pass an order under Section 146(1) Cr.P.C. It is emanating from the facts narrated that neither there were any eminent danger of breach of peace and tranquility nor were there emergent circumstances which may persuade the Executive Magistrate to pass an order for attachment of the property and appointment of a receiver by directing the receiver to take possession from the petitioner which he was enjoying since last twenty years. The fact of the case are making it abundantly clear that in this case it was not under dispute that which party was in possession of the property and even there was no question before the Executive Magistrate which may confuse the Executive Magistrate to ascertain that which party was in possession of the

¶44

(10 of 11) [CRLMP-1949/2022]

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questioned property. The criminal proceedings under Sections 145 and 146(1) Cr.P.C. are not meant to empower the Executive Magistrate to dispossess any party from the property it is surely, a task to be undertaken by the Civil Court after adjudication of the issues. The criminal proceedings cannot be permitted to use as an instrument or tool to harass the other party or to take forceful possession from one party and the same be handed over to other party; it can only be exercised in the circumstances enumerated in the statute itself and thus from the discussion made herein above, this Court is of the firm opinion that the orders passed by the Courts below fall within the phrase, “the abuse of process of law” and therefore in order to secure the ends of justice and to prevent the abuse of process of law, it would be justifiable to quash and set aside the orders impugned so as to secure the ends of justice and to prevent the abuse of process of law.

¶46

Accordingly, the criminal misc. petition is allowed. The order dated 23.3.2022 passed by the ADM City, Jodhpur (I), Jodhpur in Cr. Case No. 1/21 as well as the order dated 4.4.22 passed by the Additional Sessions Judge No.7 Jodhpur Metro in Revision No. 28/22 are hereby quashed and set aside. The Executive Magistrate is directed to pass necessary directions within thirty days from the date of receipt of the copy of this order for releasing the property from the attachment and the possession of disputed property be handed over back to the party from whom it was taken. Needless to say, the right, title and interest of the

¶47

(11 of 11) [CRLMP-1949/2022]

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parties shall be decided by the competent Civil/Revenue Court as to which party has a legitimate right to have possession over the disputed property.

¶49

In view of the above observations and directions, the misc. petition is allowed. The stay petition is disposed of.

¶50

(FARJAND ALI),J

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Arti/-

Ashoknath Chela Kevalnath v. State of Rajasthan

Case brief

What is this about?

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Ashoknath Chela Kevalnath v. State of Rajasthan

Case brief

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