Committee of Management Sri. V.D. Misra Higher Secondary School Vs. Additional City Magistrate and ors. - Court Judgment

Excerpt:
- - sri jain, however, relied upon the order of attachment which indicated that the magistrate was satisfied about the dispute being of actual possession. it is well known that an order of suspension has two effects -one is statutory and other is contractual. would be clearly illegal. has observed as under (see 1975 all wc 410):-in my opinion it will depend upon the nature of the claim whether only the right of user is claimed or not, i am satisfied that in the present case possession as grave yard is claimed and not only a mere right of user and as such proceedings were rightly taken under section 145, cr. in view of the aforesaid authorities, it clearly emerges that if and when the question of continuance of anyone's right to continue in an office is concerned, it does not partake.....orderpalok basu, j.1. this petition under section 482, cr. p. c. has been filed by committee of management of sri v. d. misra higher secondary school, kanpur nagar, praying that the proceedings initiated by the magistrate concerned through his order dated 17-1-1990 and also the attachment order concerning the disputed property, dated 17-1-1990 may be quashed. it has further been prayed that the action of the magistrate in having directed the supurdagi of the property to be handed over to the district inspector of schools and in turn the district inspector of school's action in transferring the supurdagi to the opposite party no. 2 narendra kumar sengar be quashed.2. since counter-affidavit and rejoinder affidavit inasmuch as supplementary counter-affidavit and supplementary rejoinder.....

Judgment:
ORDER

Palok Basu, J.

1. This petition under Section 482, Cr. P. C. has been filed by Committee of Management of Sri V. D. Misra Higher Secondary School, Kanpur Nagar, praying that the proceedings initiated by the Magistrate concerned through his order dated 17-1-1990 and also the attachment order concerning the disputed property, dated 17-1-1990 may be quashed. It has further been prayed that the action of the Magistrate in having directed the Supurdagi of the property to be handed over to the District Inspector of Schools and in turn the District Inspector of school's action in transferring the Supurdagi to the opposite party No. 2 Narendra Kumar Sengar be quashed.

2. Since counter-affidavit and rejoinder affidavit inasmuch as supplementary counter-affidavit and supplementary rejoinder affidavits have been exchanged and the parties' Counsel Sri J. N. Tiwari assisted by Sri Rakesh Tiwari for the Committee of Management/applicant and Sri Raj Kumar Jain appearing for the opposite party No. 2 Narendra Kumar Sengar (hereinafter referred to as the principal, which word is used only for convenience sake without attributing all legal rights attached to the said word to Narendra Kumar Sengar), this application under Section 482, Cr. P. C. is being finally disposed of today.

3. The short facts are that there is a Committee of Management in Sri V. D. Misra Higher Secondary School, Kanpur Nagar (hereinafter referred to as the institution). The principal was working as such vide his appointment by the Committee of Management and all duties of principal were being discharged by the said principal. On 18-9-1989 there was an order of suspension by the Committee of Management and the principal did not work. On 17-11-1989 sixty days' period elapsed. This period of sixty days is mentioned in the U. P. Intermediate Education Act (hereinafter referred to as the Education Act), within which the District Inspector of Schools must have to accord permission to the suspension order passed by any Committee of Management. It is envisaged in the Education Act and the Regulations framed thereunder that if such approval is not accorded within the said period, the suspension order dies a natural death.

4. It is further stated that the Committee of Management set up inquiry against the principal on some charges. That inquiry went on and it has been asserted that a caretaker principal was discharging the functions of the principal in the absence of opposite party No. 2. This is seriously controverted by the principal opposite party No. 2. He says that as soon as the suspension order came to an end he commenced discharging the functions and in fact he asserts that even during the period of suspension he was discharging duties of principal. The attention of this Court was drawn to the several types of litigation going on between the principal and Committee of Management relating to the aforesaid suspension order, the aforesaid order of setting up inquiry, and, various other actions in which the very factum or continuance or otherwise of the employment of the principal as also his rights to function as the principal are under challenge. Suffice it to say that those matters shall flow in their natural course. Therefore, the judgment in those litigations if and when they mature will be given and have no bearing whatsoever in the present proceedings. But the statement of this fact was imperative because the point to be decided in the present proceedings rests upon the argument of either side that it is the question of possession which is involved and not the question of right to discharge the duty.

5. By the impugned order dated 17th January, 1990 (Annexure 7), the Magistrate concerned initiated proceedings under Section 145, Cr. P.C. at the police report. The opinion conveyed to the Magistrate and the satisfaction recorded by him in the said order must be quoted here verbatim :--

'.......THANA NAZIRABAD KI AAJ PRASTUT AKHYA DINANK, 17-1-1990 SE VIDIT HUA HAI KI PRATHAM PAKSHA VA DVITIYA PAKSHA UPA-RYUKTA KE MAOHYA STHANIYA VASUDEV MISRA UCHCHATAR MA-DHYAMIK VIDYALAYA ASHOK NA-GAR KANPUR JISKI SEEMAYEN NEE-CHE DEE JAA RAHI HAIN, MEIN PRA-VESH KARANE VA KABJA KARANE KE PRAYASON KE KARAN MAUKE PAR GAMBHIR SHANTIBHANG HONE KI SAMBHAVANA UTPANNA HO GAI HAI KYONKI DONO HI PAKSHON KI ORE SE.....APAS MEIN IS KARAN SE TANAV BYAPT HAI..... MAIN MANOJ MISRA NAGAR MAGISTRATE (PANCHAM) KANPUR NAGAR POLICE AKHYA SE SANTUSHTA HOON KI UKTA VIDYALAYA MEIN PRAVESH KABJE KO LE-KAR UBHAY PAKSHON KE MADHYA BHAYANKAR VIVAD HAI EVAM MAUKE ................. SHANTI BHANG HONE KI SAMBHAVANA UTPANN HO GAI HAI. ATAH UBHAY PAKSHA SE ETADDWARA APEKSHA KARATA HOON KI VE APNE APNE KABJE KE SAMBANDH MEIN APNE LIKHIT ABHIKATHAN MAY SAKSHYA MERE NYAYALAYA MEIN DINANK 26-2-1990 KO UPASTHIT HOKAR KAREN.'

6. This order indicates that the attempt of the parties was to enter and attempt taking possession of the institution. It may be noted that the first party in the said proceeding was indicated to be the principal (opposite party No. 2) and the second party was indicated as Gyanendra Misra, manager of the institution. It was argued that the said order indicates the satisfaction of the Magistrate only to the extent that both parties were making attempts to enter the institution as also were trying to attempt taking the possession and there was no satisfaction recorded that there was a dispute concerning 'actual possession' as envisaged by Sub-section (1) of Section 45, Cr. P. C. Sri Jain, however, relied upon the order of attachment which indicated that the Magistrate was satisfied about the dispute being of actual possession. For ready reference the said satisfaction may also be quoted :

'......THANA NAZIRABAD .... KI AKHYA DINANK 17-1-1990 SRI VASU-DEV MISRA UCHCHATAR MADHYA-MIK VIDYALAYA, ASHOK NAGAR KANPUR KE KABJE KO LEKAR UK-TA UBHAYPAKSHA KE MADHYA MAUKE PAR KAFI TANAV HAI AUR GAMBHIR SHANTIBHANG KI SAM-BHAVANA HAI ... VIDYALAYA PAR KABJA KARANE KE LIYE KISI BHI SAMAYA DONO PAKSHA APAS MEIN BHID SAKATE HAIN JISASE GAMBHIR SHANTIBHANG KI SAMBHAVANA MAUKE PAR UTPANN HO GAI HAI JISKE NIVARAN KE LIYE VIVADIT VIDYALAYA KO TATKAL DAND PRA-KRIYA SANHITA KI DHARA 146 KE ANTARGAT KURK KARANE KI PRARTHANA KI HAI......YAH MAMLA APATIK MAHATVA KA HAI..... VIDYALA KO TATKALIK PRABHAV SE DAND PRAKRIYA SANHITA KI DHARA 146(1) KE ANTARGAT PRAPTA ADHIKARON KA PRAYOG KARATE HUYE KURK KARATA HOON TATHA JILAAVIDYA-LAYA NIRIKSHAK KANPUR NAGAR KO TATKAL PRABHAV SE SUPURD-GAR NIYUKTA KIYA JATA HAL...'

7. Some other arguments need to be dealt here before final decision on the two respective arguments regarding question of possession or the question of right to discharge the duties as may be involved in the instant case is taken up.

8. Sri Jain has relied upon the Education Act and the Regulation in order to advance the argument that it is the principal who has to discharge such functions under that Act and Regulations that his possession in the institution is implicit. He insists that it is not a question of the right of the principal to continue as the principal of the institution but it is factual and actual possession, which the subject-matter of the dispute before the Magistrate.

9. Sri Tiwari on the other hand has relied upon the said Act and Regulations in order to show that the building of the institution and its maintenance etc. and many other actions such as its legal protection have to be done by the Committee of Management. In fact, a decision on this question alone may determine the fate of this petition under Section 482, Cr. P. C. because it is a known fact that if it is held that the principal's right to continue as such alone is involved in the instant case, the proceedings under Section 145, Cr. P. C. will be misconceived.

10. The provisions contained in the Education Act and the Regulations have provided as to what will happen if the principal is not functioning. The fact of continuance on the charge of the office of the principal of an institution has to be decided either by the authorities under the said Act or by competent civil court, if permissible under the law. It is beyond the scope of the proceedings under Section 145, Cr. P. C. to permit the Magistrate to venture deciding an issue as to whether or not a principal has to continue to discharge the duties of the principal of the institution.

11. As noted in the foregoing paragraphs the Committee of Management had suspended the principal on 18-9-1989 and thereafter followed it up with a departmental proceedings as to his conduct as the principal. It goes without saying that the disciplinary proceedings will have to conclude one way or the other in accordance with law but the fact whether the principal had resumed duties after statutory period of suspension had come to an end must be held to be not in favour of the principal in the instant case. It is well known that an order of suspension has two effects -- one is statutory and other is contractual. So far as statutory part is concerned it goes without saying that principal if suspended and departmental proceedings are initiated against him may continue to discharge his duties, if the Committee of Management so desires; but if the Committee of Management for justifiable reasons does not permit the discharging of the duties of the principal by such a principal then he would be entitled to the allowance on full salary as is payable to him under the Education Act or Regulations or the Rules. There is no law by which an employee can insist upon employer to treat him as discharging his duties even when the employer says that he has not assumed the office of the principal after culmination of the period of suspension.

12. This being the position, it cannot be said that there is any force in the argument of Mr. Jain that the principal continued to be discharging the duties of the principal and as such was in possession of the institution and therefore proceedings under Section 145, Cr. P.C. was rightly initiated.

13. Since arguments were advanced and authorities were cited, this Court feels duty bound to take first point argued by Sri Tiwari and Sri Jain and deal with it specifically.

14. Sri Tiwari has relied upon the two decisions to agitate the question where right to continue only to a particular office is concerned, it would be wrong to equate it with the question of possession over the building where that office is situated.

In the case of Bhagwatidin Tiwari v. State-of U.P., 1978 All Cri C 24, Hon'ble B. N. Katju, J. (as he then was) has held as under:

'The dispute between the parties with respect to the right to manage the College is essentially a dispute regarding the right of user of the buildings and land of the College as contemplated by Section 147, Cr. P. C. and is not a dispute with respect to the possession of the buildings and land of the Colleges as contemplated by Section 145, Cr. P. C. as the phrase 'user of land' in Section 147, Cr. P. C. is of wide import. Once it is held that the dispute between the parties is not with respect to possession of land proceedings under Section 145, Cr. P. C. are misconceived and the preliminary order under Section 145, Cr. P. C. passed by the S.D.M. would be clearly illegal.'

15. Though in the cited case the dispute was between the rival Committees of Management, Sri Tiwari justified the applicability of the decision on the facts of the present case treating it to be parallel in the sense that the claim of the Principal is also depending on the fact that he proposed to declare himself as member of the Committee of Management whereas the manager Sri Gyanendra Misra. claims himself to be the manager by virtue of being another member of the Committee of Management.

16. In the case of Managing Committee Dooma Bhagat Vidyalaya v. D. M. Ballia, Hon'ble M. Wahajuddin J. has held as under (See 1982 All Cri C 169):--

'So far as the powers of attachment are concerned, after considering the nature of the proceedings under Section 145, Cr. P. C. and 147 Cr. P. C. and further considering that for the purpose of enquiry Section 145, Cr. P. C. provisions have been made applicable to proceedings under Section 147, Cr. P. C. I am of the view that power of interim attachment and orders must exist and Section 146(1), Cr. P. C. is just compliment and part of Section 145, Cr. P. C. and has no independent existence.'

It was held by Hon'ble M. Wahajuddin J. that: --

'On a perusal of the preliminary order passed in the present case it is manifest that the two parties had' rival claims to the Managership with two Managing Committees. The dispute which was found likely to cause breach of peace, concerns the possession and control of Management of the institution concerned....'

17. Sri R. K. Jain has relied upon three decisions in order to justify his argument that in the instant case it was only the question of possession which was in dispute, even though the challenge of the applicant was about the continuance of the principal in the office of the principal.

18. In the case of Muktanand Chaturvedi v. State of U.P. Hon'ble H. N. Kapoor, J. held as under (See 1977 All WC 602): (1978 Cri LJ NOC 1): --

'There is no absolute bar in the proceedings under Section 145, Cr. P. C. and 146, Cr. P. C. in respect of immoveable properties belonging to an educational institution when the dispute is with regard to the possession of that property. No doubt criminal Court can pass order with regard to the possession of the immoveable property only and not with regard to the management of administration of the institution proper order in that respect can be passed by a Civil Court only. It is true that right to manage and administer may include right to possess the immoveable property also. On that case it will be proper for the criminal Court to withdraw attachment. and get the property delivered to the person or persons who succeed in the civil court in establishing their right to manage the institution.'

19. In paragraph 3 of the said decision Hon'ble Kapoor J. further held that:

'Learned Counsel for the petitioner has argued that according to the preliminary order the dispute was concerning management and as such the proceedings under Section 145, Cr. P. C. could not have been initiated by the learned Magistrate on the basis of such a preliminary order. I however, find that it is also stated in that order that both the parties were claiming possession over the said institution and its assets.'

In the case of Musaddi v. State of U. P. Hon'ble H. N. Kapoor J. has observed as under (See 1975 All WC 410):--

'In my opinion it will depend upon the nature of the claim whether only the right of user is claimed or not, I am satisfied that in the present case possession as grave yard is claimed and not only a mere right of user and as such proceedings were rightly taken under Section 145, Cr. P. C.'

In the case of Ghananand v. State, Hon'ble J.M.L. Sinha, has held as under (See 1976 All WC 172 : (1976 Cri LJ 1217) (Para 13):--

'If any servant or agent claims possession over the property in dispute on his own account he can take the aid of Section 145, Cr. P. C. for his possession being retained. But, if he claims to be in possession on behalf of the master or the principal, and nothing beyond it, he cannot ask for the protection of his possession in proceedings under Section 145, Cr. P. C.

20. It may be noted that in this case the dispute was between the manager and a Munim about the possession of the property. In view of the aforesaid authorities, it clearly emerges that if and when the question of continuance of anyone's right to continue in an office is concerned, it does not partake becoming the question of possession. In this connection, the satisfaction of the Magistrate is noted in the order under Section 145, Sub-section (1), Cr. P. C. as quoted above, is very important. He nowhere said that there was any dispute concerning any actual possession of the institution. In fact the Magistrate could not have ever said that the question of possession between principal and the Committee of Management was involved in this case. His saying so would have been negatived by the very controversy between the parties. On the admitted facts at best the dispute is still continuing as to whether the principal has resumed duties after suspension period or not. That being so, it was not open to the Magistrate to initiate proceedings under Section 145, Cr. P. C. The order dated 17-1-1990 is therefore manifestly erroneous.

21. requires serious criticism about the manner in which after the attachment was ordered, the property was passed into the hands of the principal. The attachment order as quoted above, clearly said that the District Inspector of Schools alone will discharge the functions of the Supurdgar. It does not stand to reason as to why the District Inspector of Schools asked somebody else to perform the said job. From the averments of the parties, from the affidavits filed before this Court, it is not clear in what circumstances and when the District Inspector of Schools made application before the Magistrate for change of Supurdgar. The fact remains that in paragraphs 18, 19 and 20 of the present petition, it has been averred that the papers of the institution were handed over by the Supurdagar (whosoever he may have been) to the principal, opposite party No. 2. Where the preliminary order itself indicated that the entry attempt of the principal alone was the cause of agonising condition between the two parties, it was wholly unjustified for the Magistrate to permit one of the parties to enter possession through the back door. Such action is not. to be countenanced by this Court, as the very purpose for which the Magistrate had initiated proceedings may be frustrated. The result of this discussion is that the property must be ordered to be given to the possession of the person from whose possession it was taken.

22. Before parting with this case, it will be useful to refer to the two preliminary objections which were raised by Sri Jain. He said that the Committee of Management has no right to maintain this petition. In the instant case the applicant has been shown to be the Committee of Management through Manager Gyanendra Misra who was himself mentioned as the second party in the order of the Magistrate issued under Section 145(1), Cr. P. C. This preliminary objection therefore has no force. The second objection raised by Sri Jain is that an order under Section 146(1), Cr. P. C. being interlocutory order no revision lies, consequently, no application under Section 482, Cr. P. C. in the instant case could have been filed. However, the basic challenge in the instant case is to the preliminary order initiating proceedings under Section 145(1), Cr. P. C. the said objection also lacked merit, as a result of which both the learned Counsel were heard on merits at length. No other point was argued.

23. This application is allowed. The orders of the Magistrate dated 17-1-1990 initiating proceedings under Section 145, Cr. P. C. and attaching the property under Section 146, Cr. P. C. are quashed. The College building will be handed over to the person from whose possession it was taken and attached. Effect of this order shall be given within a week of the receipt of the certified copy of this order by the Magistrate concerned.

24. Notwithstanding the aforesaid disposal of this application under Section 482, Cr. P. C. relating 145/146, Cr. P. C. it will be open to the law and order machinery including the Magistracy to initiate such other proceedings as they may be entitled under the law, should the condition require bringing in such legal proceedings for maintaining law and order.

25. A certified copy of this order may be furnished to the learned counsel for the parties on payment of usual charges on or before 30th April, 1990.