MUKTANAND CHATURVEDI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS revision JA directed against the order dated 2-7-1977 of Additional City Magistrate, Varanasi initiating proceedings under Section 145 Cr.P.C. and another order passed under section 146 Cr.P.C. attaching the pro perty. Certified copy of the other order has not been filed, but there is a referen ce of that order in the affidavit filed along with this revision petition, Three counter affidavits and four rejoinder affidavits have been flied in this case. The facts giving rise to this revision briefly stated are as follows :- There is an Institution known as Bal Niketan junior High School, Sankathaghat, Varanasi. Originally the Manage ment Committee under the President ship of one Laxmi Narain Rastogi, was managing the affairs of this Institution. Laxmt Narain Rastogi resigned and an other Managing Committee under the Presidentship of Anjani Nandan Misra was elected by the General Body on 13-7-1975. It appears that Sri Rastogi has withdrawn his resignation as according to hi in, he had to tender it under force and a dispute has arisen between the two rival Managing Committees, one headed by Anjani Nandan Misra and the other headed by Laxmi Narain Ras togi. The City Magistrate then passed and order undet Section 144 Cr. P. C. restraining Anjani Nandan Misra and the members of his Committee from putting any obstruction in the working of the Committee of Management of the Ins titution established under the President ship of Laxmi Narain Rastogi. A peti tion under Section 482 Cr. P. C. was filed for quashing the proceedings under Section 144 Cr. P. C. That petition was allowed by me by my order dated 2-9-1975 in Criminal Misc. Application No. 4318 of 1975. The case is reported Anjani Nandan Misra v. State (I). The relevant extract from the judgment is also quoted in the petition filed in the present case. It may be stated here that at that time Sheo Nath Pandey opposite party No. 2. was the Secretary of the Managing Committee, presided by Anjani Nandan Misra. Subsequently it appears that Sheo Nath Pandey formed another parallel Managing Com mittee of which he was the Secretary while Mukta Nand Chaturvedi, peti tioner, became the Secretary of the Managing Committee under the Presi dentship of Anjani Nandan Misra. Both the parties claimed right to manage the Institution and to possess assets and properties of the Institution. On the police report the Additional City Magis trate, Varanasi was satisfied that there was apprehension of breach of peace. He, therefore, passed the preliminary order dated 2-7- 1977 under Section 145 Cr. P. C. and by a subsequent order attached the property of the Institution under Section 146 Cr. P. C. appointing Basic Shiksha Adhikari as the Receiver. Before possession could be actually taken by the Basic Shiksha Adhikari, the petitioner rushed up to this Court. It appears that the police had locked the premises. THIS Court then passed the order dated 21-7-1977 ordering that Mukta Nand Chaturvedi, who is the Secretary of the Management Commit tee headed by Sri Anjani Nandan Misra be appointed as Receiver of the Institu tion. Learned counsel for the petition er has challenged the preliminary order in the order under Section 146 Cr. P. C. on several grounds. First ground is that the matter was concluded by the order passed by this Court in the case undsr Section 144 Cr.P.C. and the pos session of the Managing Committee headed by Anjani Nandan Misra had been recognised and as such it was not open to the learned Magistrate to dis turb that possession by interfering under Section 145 Cr. P. C. In this connection he has also placed reliance on the Report of the Basic Shiksha Adhikari dated 20-4- 1977 made to the Superintendent of Police (Annexure 2) and the report dated 9-7-1976 made to the Additional District Magis trate (City) (Annexure 1). These reports are to the effect that the old Managing Committee was constituted of Anjani Nandan Misra as President and Sheo Nath Pandey as Secretary while Sheo Nath Pandey got another Managing Committee elected in an irregular man ner which was against the rules. The matter was, however, sub-judice and proper steps would be taken after the decision of the court. Now it transpires that a civil suit had abscady been filed be the institution and Sheo Nath Pandey being civil Suit No. 179 of 1976. THIS was decided ex parte against Anjani Nandan Misra and others on 24-3-1977 and the defendants were permanently restrained from interfering with the functions of Sheo Nath Pandey as Sec retary. Copy of this order is Annexure 1 to the supplementary counter affidavit filed on 13-9-1977. The rejoinder sup plementary affidavit filed on 26-9-1977 shows that an appeal has been filed against that order and restoration appli cation too has been moved both of which are pending. In that very suit an interim injunction had been granted restraining Anjani Nandan Misra and others from interfering in the operation of Bank account by Sheo Nath Pandey and a revision against that order had been rejected by the District Judge. The fact remains that the ex-parte order dated 23-3-1977 stands until it is set aside. It is stated in one of the counter affidavits that Basic Shiksha Adhikari is colluding with Sri Anjani Nandan Misra. Apart from it, the fact remains that Sheo Nath Pandey was allowed to operate bank account even by the court. There can be presumption that such a person was in possession of assets of the Institution. The position is different from that which existed at the time when the proceedings under Section 144 Cr.P.C. were taken as Sheo Nath Pandey was the Secretary of the Managing Committee under Anjani Nandan Misra. When he formed another Managing. Committee, he could have continued to remain in possession, though his earlier possession might have been as Secretary of the Managing Committee under Anjani Nandan Misra. In the counter affidavit it has also been stated that the interests of the Institution were not safe in the hands of Anjani Nandan Misra, who is a history sheeter. Full details given in Register No. 8 have been an nexed as Annexure B to the counter affidavit dated 12-7-1977. The allega tions about his being history sheeter have been sworn on personal knowledge by Sheo Nath Pandey himself. In the rejoinder affidavit which was sworn by Rajev Nandan Misra, son of Anjani Nandan Misra and was filed on 26-8-1977, in para 10 where of the fact of his being history sheeter was not specifically denied. Only it was averred that he never served any sentence. The extract of Register No. 8 shows that he was convicted once and the appeal was allowed and obviously for this reason he might not have served any sentence. After arguments were heard in part, on the following day another supplementary rejoinder affidavit was filed on 29-9-1977, which was sworn by Shridhar Dubey, claiming himself to be brother-in-law of Anjani Nandan Misra. In this affidavit it was stated that Anjani Nandan Misra was neither a history sheeter nor is he a his tory sheeter and that the extract of Re gister No. 8 filed did not appear to be a genuine document. For the purpose of this case when this supplementary re joinder affidavit was filed at such a late stage I did not consider it necessary to make a further enquiry from the police station concerned. But the fact remains that the son of Anjani Nandan Misra himself could not deny the fact specifi cally that he was a history sheeter. On merits the order passed by the learned Migistrate under Section 146 Cr. P. C. appears to be just and proper as an in dependent person who is Basic Shiksha Adhikari has been appointed as Re ceiver. He will certainly be required to hand over possession of the Institution to the person or persons whoever is ulti mately held to be entitled to the same by the civil court. A legal point has, however, been raised in this case. Learned counsel for the applicant has argued that there can be no proceedings under section 145 Cr. P. C. in case of an educational institu tion when the dispute is mainly with regard to the management. In support of this contention he has placed reliance on the case of Sheo Murat v. State of U. P. (1), decided by Bakshi J. and the case of Onkar Nath Tewari v. Ram Anjor, 1973 criminal Law Transport 1885, decided by K. B. Srivastava, J. In the latter decision order passed was with regard to the administration, management etc. and the AdministratiTe Officer attached Administration Mana gement, Managing Committee, Land, Building, appurtenances thereto, furni tures, books, registers etc. That was clearly illegal. The learned Judge, therefore observed that it was beyond the jurisdiction of the Magistrate to adjudicate upon the respective title or claims of the Managing Committee or to administer the affairs of the College. Towards the end the learned Judge observed that it was possible for the Magistrate to confine the case only to the land and building and proceed afresh from the state of the preliminary order. On the basis of this authority, therefore, it can be said that proceed ings under Section 145 Cr. P. C. could have been instituted in case there was dispute about possession of immovable property of an Institution. Earlier the learned Judge had even observed that properties of the nature of furniture, books, register etc., found in the school building may also go along with the land. In the other case reported in 1976 A.L.J. 17 (supra), the dispute was with regard to the rights of the parties to manage an educational Institution. In that context the learned Judge ob served that proceedings under Section 145 Cr.P.C. do not lie although it might have been possible to take proceedings under Section 147 Cr.P.C. ft is signifi cant that that very learned Judge in an earlier case in the case of M. G. N. T. v. S. D. M. Deoria and others (2), had refused to interfere with an order of attachment passed under Section 146 Cr. P.C. attaching the properties of an edu cational Institution under Section 146 Cr.P.C. It can, therefore, be said that there is no absolute bar in proceedings under Sections 145 Cr.P.C. and 146 Cr P.C. in respect of immoveable proper ties belonging to an educational Institu tion 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 immovable property only and not with regard to the management or adminis tration 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 immovable property also. In that case it wilt 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. Learned coun sel 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 however, find that it is also stated in that order that both the parties were claiming possession over the said Insti tution and its assets. Both the parties were required to put in their written statements as regards actual possession over the Institution in dispute. When the preliminary order is read as a whole, it is clear that th-2 proceedings were started in respect of the management. The order passed under Section 146 Cr. P. C. is also clear on the point that rela tions between the parties were strained on the issues of possession over Bal Niketan Junior High School and its assets. Attachment was ordered of the subject of dispute i.e., of the building of the Institution which cannot be con sidered to be illegal. Learned counsel for the applicant has also argued that the members of either of the Managing Committee could not be considered to be in actual possession of the Institution and as such the proceedings under Sec tion 145 Cr.P.C. would not lie. A party can be said to be in possession even through its employees or agents when it is in actual control of the property. In the case of Raja Baraja Sunder Dev and another v. Moni Behara and others (3), the Supreme Court went to the extent of holding that proceedings under Section 145 Cr. P. C. could lie even in respect of fishery rights, even though the party claiming such right is to exercise the right during a particular season in the year only while the rights were to be enjoyed by other persons during the re maining period. After considering the entire material on the record I am satisfied that the order passed by the learned Magistrate is just and proper. In the counter affi davit it has been stated that it would be proper to appoint District Inspector of Schools or Sub-Deputy Inspector of Schools as the Receiver as the Basic Shiksha Adhikari is colluding with the other party. I do not find that there is sufficient material before me for arriv ing at this conclusion at this stage. It will of course be open to the learned Magistrate to change the Receiver if he is satisfied that he is not working in the interest of the Institution or in case he is not prepared to act as Receiver as appointed by the learned Magistrate. In the result the revision is dismissed. The order dated 8-7-1977 staying appointment of Receiver is vacated. The order dated 21-7-1977 appointing M. N, Chaturvedi as a Receiver is also vacated, M. N. Chaturvedi is directed to hand over charge to the Basic Shiksha Adhikari, who was appointed Receiver by the Magistrate or to any such other person who is now appointed as Receiv er by the Magistrate.