Harkishan Advocate, Palwal and others vs State of Haryana and others

S.C. Mittal, J.—The Braj Mandal College Society, Hodal, through its Secretary Ch. Harkishan, Advocate, and other members of the Governing Body, has filed this petition u/s 482 of the Code of Criminal Procedure for quashing composite order Annexure P. 3 passed by Sub-Divisional Magistrate, Palwal, under Sections 145 and 146 of the Code and further attaching the college building and appointing the. Tehsildar, Palwal, as receiver. The subsequent order Annexure P. 4 of the Sub-Divisional Magistrate, Palwal, directing the Braj Mandal College Society, Hodal, to hand over complete records of the college to the Tehsildar has also been challenged.

Brief facts of the case are that the Education Society, Hodal, was registered on 3rd December, 1966, by the Registrar of Firms and Societies, Haryana. Its name was later changed as Braj Mandal College Society. It is running the college above-said in Hodal since July 1968. The college is affiliated to the Kurukshetra University and it is being administered through a Governing Body constituted under Rules 6-B of the Rules of the Society. Under Rule 6-A, the Sub-Divisional Magistrate, Palwal, is the Ex-officio President of the Society. By a vote of no-confidence he was removed from the said office on 23rd January, 1977. The matter was taken to the civil Court by some members of the Society and an injunction against the removal of the Sub-Divisional Magistrate was obtained. It is said that according to the rules of the Society, the present Governing Body, the members whereof are the petitioners, was duly elected and it has been administering the collage.

It is further alleged by the petitioners that owing to the reduction in the workload, as per rules of the Kurukshetra University, one lecturer of the English Department was rendered surplus. This resulted in the termination of the service of Shri K.L. Malik on 26th October, 1977. Shri U.S. Bhardwaj another lecturer of the said Department protested by going on fast unto death on the follwing 29th. In consequence of the disciplinary action taken against him, Shri U.S. Bhardwaj was suspended. On 17th November, 1977, Respondents 5 to 9 who are the members of the Society applied to the Sub-Divisional Magistrate, Palwal for taking over the property of the College as there was apprehension of the breach of the peace. The Sub-Divisional Magistrate marked the application (Annexure P. 1) to the Station louse Officer, Hodal who submitted his report Exhibit P. 2 on the basis of which the Sub-Divisional Magistrate passed the impugned order Annexure P.3 u/s 145(1) of the Code of Criminal Procedure. The relevant part of the order reads:--

Whereas from the report of the local police, Hodal dated November 17, 1977, I am satisfied that a dispute likely to cause a breach of peace exists concerning the possession and management of the Brij Mandal College, Hodal situated at Hodal, Tehsil Palwal (Gurgaon) and the properties thereof as mentioned in the site plan between the members of the Brij Mandal College Education Society, Hodal... ... ... ... ... ... ... ... ... ... I, therefore, in exercise of the powers vested in me u/s 145 Criminal Procedure Code and on my satisfaction that there is a dispute concerning the possession of the above said college and it is likely to cause a breach of peace, do hereby order......

Learned counsel for the petitioners read out the entire (sic) report Annexure P. 2 showing that by reason of the termination of the service of Shri K.L. Malik and by the suspension of Shri Shri U Bhardwaj, Lecturer of the English Department, by the Governing Do of the College, there arose a split. Some students insisted upon the retention of the two lecturers whereas the other faction was opposed to it. On 14th November, 1977, both the faction gathered on the college premises and quarreled but the situation was brought under control after great efforts. On the following 15th, again the two factions of the students clashed because one faction wanted the two lecturers above-named to take classes inside the college whereas the other faction was strongly opposed to it. The former faction tried to take the lecturers inside the college forcibly. The doors of the college were closed and the situation was brought under control. Again on 16th November, 1977, the clash between the two factions of students was averted with great difficulty. In the surcharged atmosphere there was likelihood of commission of some serious crime like murder. In these circumstances, the police in their report suggested that the college should be attached u/s 145 of the Code and a receiver be appointed.

The impugned order Annexure P. 3 is entirely based on the above said report of the police in which there is not a word with respect to the dispute concerning the possession and management of the college. Ex-facie, the report laid emphasis on the tension prevailing between the two factions of the students because of the action taken against the two lecturers of the English Department. Learned counsel for the petitioners argued that there was no basis for the Sub-Divisional Magistrate to make mention in the impugned order of the dispute concerning the possession and management of the college. The very foundation for action u/s 145(1) of the Code was thus lacking. In order to overcome this difficulty, learned counsel for Respondent Nos. 5 to 9, who had initiated the proceedings by filing application Annexure P. 1, contended that the statement of facts in Annexure P. 1 were also present to the mind of the Sub-Divisional Magistrate Notwithstanding the fact that the contents of the impugned order did not support the contention, learned counsel for the respondents took me through the application Annexure P. 1. Therein, the validity of the election of the Governing Body, constituted by the petitioners, was challenged but one fails to see how this has any relation to the passing of the impugned order.

Learned counsel for the respondents then argued that in the application Annexure P. 1, there was clear reference to the dispute over the possession of the college and its management. In Paragraph 4 of Annexure P. 1, the respondents stated that after getting themselves elected as members of the Governing Body illegally and unconstitutionally, the petitioners took possession of the college and its properties. The petitioners prepared fictitious records and after receiving the income of Society and the grants given by the Government wrongly and unlawfully misappropriated the same. The termination of the services of the two lecturers above named was also alleged to be illegal in Annexure P. 1. These averments clearly make out that the possession of the college building is with the petitioners who have formed themselves as the Governing Body and they are managing it. Respondents Nos. 5 to 9 are just a few members of the Society consisting of 1200 members. Respondents Nos. 5 to 9 have clearly failed to make out any case in Annexure P. 1 entitling them to the possession or management of the college. Besides, it deserves mention that annexure P. 1 was forwarded by the Sub-Divisional Magistrate to the station House Officer, Hodal, who after investigating the case sub-mitted his report Annexure P. 2, discussed above. In Annexure P. 2, there is not a word as to the dispute over the possession of the college properties between the petitioners and the respondents. The irresistible conclusion, therefore, is that the Station House Officer did not find any substance in the allegation made in Annexure P. 1 as regards the claim of the respondents to possession of the college. It need hardly be said that it was open to the Sub-Divisional Magistrate to pass the impugned order upon the allegations made in Annexure P. 1. He instead forwarded it to the Station House Officer for enquiry and report. It means that the Sub-Divisional Magistrate did not accept the allegations in Annexure P 1 ex facie. For all these reasons, I do not find any merit in the contention of the learned counsel for Respondents Nos. 5 to 9 that while passing the impugned order Annexure P. 3, the Sub-Divisional Magistrate had their application Annexure P. 1 also in mind.

It is well settled that the intention of section 145 of the Code of Criminal Procedure is to provide a speedy remedy for prevention of the breach of the peace arising out of a dispute in respect of immoveable property vide Faqir Chand v. Bhana Ram and others (1957) 59 P.L.R. 404. The impugned order Annexure P. 3 based thereon cannot, therefore, be sustained. It is accordingly quashed. In the result, subsequent orders Annexures P. 4 and P. 5 have also to be quashed and the petition is allowed.

In passing, it deserves mention that the quashing of the impugned orders shall have no effect on the powers of the Magistrate to take preventive action u/s 107 of the Code of Criminal Procedure or to act otherwise in accordance with law.