Amar Nath Gupta vs Narinder Kumar Bansal

Surinder Singh, J.

This petition under Section 482 Cr.P.C. Has been preferred by Amar Nath Gupta, Manager, Gandhi Memorial Education Society, Kotkapura (Branch Gandhi Nursery, School, Kotkapura), against Narinder Kumar Bansal respondent, with the prayer for quashing of two orders i.e. one dated February 26, 1986 passed under Section 145(1) Code of Criminal Procedure (Copy Annexure P/6) and the order of the same date passed under Section 146 Code of Criminal Procedure (Copy Annexure P/7) by the Sub Divisional Magistrate, Faridkot.

A brief resume of the circumstances leading to the present petition is necessary. On May 1, 1985 a Police Report was, made to Sub Divisional Magistrate, Faridkot. An English rendering of the said report is reproduced in para 1 of the petition and its correctness is not disputed. The same runs as follows :

"It is requested that in city of Kotkapura at Faridkot Road, there is one school Gandhi Memorial Educational Society, the President of which is Narinder Kumar Bansal (wrongly stated as Surinder) who is party No. 1. The Manager of this Trust is Shri Amar Nath Gupta who is party No. 2. Shri Amar Nath Gupta wants to remove the Principal of this school Smt. S.K. Bansal who is Principal of this school from last 1012 years, whereas the "President Sh. Narinder Kumar Bansal does not want that she should be removed. For this dispute the School remained closed on 30.4.1985. On account of this school remaining closed all lady teachers of Gandhi Memorial School want management with regard to expenditure of money, as also facilities of the staff of the school to be vested with Narinder Kumar Bansal and Smt. S.K. Bansal. Whereas Amar Nath Gupta wants to keep in his own hands all powers of giving and taking as also all other powers. For this purpose, the Sub Divisional Magistrate yesterday and today had come to get the matter compromised but both the parties are adamant in refusal. With regard to the powers of management of the school Narinder Kumar claims his right whereas Amar Nath Gupta claims his right. Lady teachers are prepared to die. After seeing no way out I am sending this report for proceedings with regard to Gandhi Memorial Nursery School under Section 145 Cr.P.C. After passing an order under Section 145 Cr.P.C. some high official be appointed as a Receiver and the school be permitted to continue as usual. If these proceedings are not initiated, there can be some occurrence from any of the side and the decision with regard to management be done.

In consequence of the above Police Report, the Sub Divisional Magistrate passed a preliminary order under Section 145, Code of Criminal Procedure, on May 1, 1985 copy whereof is Annexure P/1 to the petition. In substance, the Sub Divisional Magistrate observed in the order that from the facts as placed before him. He was unable to satisfy as to which of the parties is the rightful claimant to enjoy the powers of appointment and removal of Principal and other staff and to which of the said party is in possession of the school building. The Sub Divisional Magistrate, therefore, directed the parties to appear before him along with the evidence in support of their respective contentions on August 7, 1985. The matter was contested by the petitioner by filing a written statement to the notice issued to him in this case. In this reply, a specific preliminary objection was taken that proceedings under Section 145, Code of Criminal Procedure, could not be initiated in this case, because there was no dispute of the possession or ownership of the school building which was in possession of the Trustees i.e. the Managing Society. On merits, it was contended that the respondent was out to close down the school, as he had opened another school just in front of the school in dispute. After hearing the parties, the Sub Divisional Magistrate, Faridkot passed an order on May 20, 1985, (P4) in which he observed as follows :

"........I am convicted that the Ist party Narinder Kumar wanted that the school in dispute be closed which is against the tenants, customs and traditions of the civilised society. I, therefore, order that the management of the school be handed over to the trustees or the managing body of the school. The proceedings initiated under section 145, Code of Criminal Procedure, are, therefore, dropped and the possession of the school be given to the managing body. The District Education Officer, Faridkot, who was appointed as receiver, is hereby directed to hand over the record of the school to the managing body. File be consigned in the record room."

Sd/

Sub Divisional Magistrate,

Faridkot."

The respondent carried a Revision Petition against the above order of the Sub Divisional Magistrate which was heard by the Additional Sessions Judge, Faridkot and was disposed of by means of order, dated February 19, 1986, copy whereof has been produced as Annexure P/5 to this petition. The operative part of this order is that the order was passed by the Sub Divisional Magistrate was set aside and the case was sent back to the said Officer with the direction to proceed in the matter according to law.

The matter was again taken cognizance of by the Sub Divisional Magistrate, on remand from the Court of the Additional Sessions Judge and it is then that the impugned order Section 145, Code of Criminal Procedure (Copy Annexure P/6) was passed by him. Another order under Section 146, Code of Criminal Procedure (Copy Annexure P/7) was also passed by the Sub Divisional Magistrate and by virtue of this order. Shri Gian Chand Gupta, District Development and Panchayat Officer, Fridkot, was appointed as Receiver of the property of Gandhi Nursery School, Kotkapura. The receiver was directed to take possession of the said property and also the entire record maintained by the management of the school, untill decree or order of the competent Court determining the rights of the parties or the powers determining rights of the parties for the appointment and removal of the Principal and other staff." A further direction was issued that the member of the Gandhi Nursery School shall abstain from interfering with the running of the Management of the School by the appointed receiver. As the order itself recites, the same was passed ex parte. This is how the dispute has travelled to this Court by means of the present petition.

Mr. V.K. Bali, learned Counsel for the petitioner has made certain submissions which may be noticed. The contention in the first instance is that the learned Sub Divisional Magistrate while passing the impugned orders, Annexure P/6 and P/7, had gone astray not only in interpreting the directions of the Additional Sessions Judge in the remand order but also in issuing such directions which were not permissible under the law. After hearing the learned Counsel for the parties, I find that the contention has indeed force. A perusal of the remand order of the Additional Sessions Judge would show that the illegality observed by the said Court in the earlier order passed by the Sub Divisional Magistrate was that the latter officer had not decided as to who was in possession of the school building at the time of the passing of the said order under Section 146(1) Code of Criminal Procedure, nor any finding had been recorded as to whether or not there was any likelihood of breach of peace with regard to the subject to the dispute. The case was, therefore, remanded with directions to the Sub Divisional Magistrate to proceed in the matter `according to law''. The Sub Divisional Magistrate, as is apparent from a perusal of his order Annexure P/6 misconstrued the above direction by making the following observations :

"Shri Narinder Kumar Bansal went in appeal against my order dated 20.5.1985 before the Additional District and Sessions Judge, Faridkot who vide his order dated 19.2.1986 set aside my order and directed me to restrain the parties and take legal action under Sections 145 and 146, Code of Criminal Procedure, to avoid imminent danger of breach existing between the parties as the parties were not allowed to lead their evidence. As per the directions of the Additional District and Sessions Judge, Faridkot, I initiate(d) the proceedings under Section 145, Code of Criminal Procedure of 1973."

It is obvious that instead of applying his mind afresh to the facts in controversy and the material on the record, the Sub Divisional Magistrate initiated the proceedings under Section 145, Code of Criminal Procedure, presuming that a direction in this behalf was issued to him by the learned Additional District and Sessions Judge which, in fact, was not so. The learned counsel for the petitioner is, therefore, quite justified in contending that the order passed by the Sub Divisional Magistrate under Section 145, Code of Criminal Procedure, is not the result of his application of mind but merely a routine order.

The second contentions of the learned Counsel for the petitioner is that the second order passed by the Sub Divisional Magistrate under Section 146, Code of Criminal Procedure (Copy Annexure P/7) also suffers from serious legal infirmities. Even a cursory look at this order would show that the Sub Divisional Magistrate was observed with the notion that he had to examine the rights of the parties regarding their power of appointment and removal of the Principal and other staff and a finding was given that he (Sub Divisional Magistrate) was unable to satisfy himself as to which of the said parties is to enjoy this power. The Sub Divisional Magistrate further observed as follows :

"Whereas from the material placed before me and facts, the running of Gandhi Nursery School at Kotkapura is not possible by its management but it is very essential to run the said school otherwise the career of the students will (be) ruined as they will not be able to attend to their classes and studies."

In the wake of the above facts and observations, the Sub Divisional Magistrate ordered the attornment of the property in dispute and appointed a Receiver not only to take possession of the premises but also the entire record maintained by the management of the school forthwith. To top all, the appointment of the Receiver was made until the passing of a decree or order of the competent Court determining the rights of the parties or the powers determining the rights of the parties for the appointment and removal of the Principal and other staff.

Mr. Bali has referred to several decisions of this Court itself, wherein the law has by now been well settled that the Sub Divisional Magistrate cannot initiate proceedings under Section 145 of the Code of Criminal Procedure regarding any dispute likely to cause breach of peace, concerning the Management of an Educational Institution. The recent decision on the point is reported as Harbhajan Singh Dhatt and another v. Sub Divisional Magistrate, Daruya and another, 1983(1) Recent Criminal Reports 431 in which a learned Single Judge relied upon a number of earlier decisions of this Court on the proposition that the right to management of the affairs Educational Institution is outside the domain of Section 145, Code of Criminal Procedure. No decision to the contrary has been cited before me. In this view of the matter, the order passed by the Sub Divisional Magistrate appointing the Receiver to take possession of the records maintained by the management of the school and restraining the members of the management and the staff of the School from running the School is not sustainable. The same is, therefore, quashed.

Mr. D.S. Nehra, learned Counsel for the respondent has urged that the part of the order of the Sub Divisional Magistrate as per which a direction was issued to the Receiver to take possession of the school building may be upheld but such a course, instead of improving matters, would complicate the issue all the more. Even otherwise, there is no material on the record, on the basis of which it could be inferred that there was any dispute relating to the possession of the building of the school. As already noticed, the Police Report made to the Sub Divisional Magistrate at the earliest occasion makes no reference to any such dispute. All that is recited in the Report is that Party No. 2,1 i.e. the respondent wants to remove the Principal of the school, whereas Party No. 1 i.e. the respondent does not want that she should be removed. The Report further recites that the Lady Teachers of the school wanted the Management to vest with the respondent, while the petitioner claimed that he was the rightful person to manage the affairs of the school. In these circumstances, even though the learned Sub Divisional Magistrate made a passing reference in his orders to a dispute regarding the possession of the school the same has not actually been shown to exist. In fact, the purport of the orders passed by the Sub Divisional Magistrate, which as extracted above, was only the fact that the Divisional Magistrate, was the opinion that the running of the school was essential in the interest of career of the students, which would be ruined if they are not able to attend their classes and studies. Thus both the impugned orders Annexure P/6 and P/7 were passed only with a view to advance the said purpose and this was not permissible under the law in view of the authorities already noticed.

The result is that both the orders passed by the Sub Divisional Magistrate, dated February 2, 1986 (Annexure P/6 and P/7) are an abuse of the process of Court and are, therefore, quashed. If the Receiver appointed by the Sub Divisional Magistrate has taken possession of the records of the Institution, he shall return the same to the Managing Committee which was running the Institution.

JUDGMENTs quashed.