Miss Vimla Merha vs The State of Punjab and Others

A.P. Chowdhri, J.—This is a petition u/s 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') arising out of the following facts. The Petitioner instituted an application u/s 13 of the East Punjab Rent Restriction Act, 1949, against Janta Girls High School, Chheharta, through its President Shri Chaman Lal in the court of Rent Controller, Amritsar, on July 20, 1988. Written statement was filed by the President of the said Society and order of ejectment was passed by the Rent Controller on 1st February, 1989. The land lady took out execution of the order of ejectment and obtained possession of the premises through baillif on 28th April, 1989. The Society instituted a suit through its President and Manager on 9th May, 1989 for possession of the building. Alongwith the suit, an application for temporary injunction was filed. By order dated 12th May, 1989, Sub Judge 1st Class, Amritsar, restrained owner landlords (a) from alienating the suit property, and (b) parting with its possession in favour of any other person till further orders. The Petitioner also instituted a suit seeking an injunction restraining the State of Punjab, the District Education Officer and the Headmistress of the Janta Girls High School, Chheharta from recovering from the Petitioner the grant-in-aid already advanced to the school as the amount had already been duly disbursed to the members of the staff and the Petitioner was not concerned therewith in any manner. It was at this stage that the members of the staff of the Janta Girls High School, Chheharta made a complaint to the Executive Magistrate, Amritsar, u/s 145 of the Code whereupon the impugned order Annexure P1 u/s 145(1) of the Code was passed on 2nd June, 1989. On the same day, an order u/s 146(1) of the Code was passed by the Executive Magistrate appointing District Education Officer (Secondary), Amritsar, as Receiver with the direction to take over possession of the school building and to run the shool until decree or order to the contrary was passed by a competent Court determining the rights of the parties. Through this petition, both these orders under Sections 145 and 146 of the Code are sought to be quashed.

By order dated June 13, 1989 notice was given to the Respondents and operation of the impugned orders Annexures PI and P2 was stayed. Respondent No. 1 on the one hand and Respondent Nos. 2 and 3 on the other hand, have filed their written statements. Respondent No. 1 in his affidavit has stated that on receipt of a complaint instituted by seven members of the staff of the school he was satisfied with the averments made therein and initiated proceedings u/s 145(1) of the Code. He also passed order Annexure P2 and in compliance therewith the Receiver took possession of the premises on 5th June, 1989 and started running this school from the same day. It was not brought to his notice that there were ejectment proceedings before the Rent Controller and possesion etc. was delivered in execution of the order of the Rent Controller. The Petitioner instead of filing a reply and bringing the relevant facts to his notice has rushed to the High Court. He had, however, complied with the order of stay dated June 13, 1989,

In a detailed reply filed by Respondent No. 2 and 3, it was stated that the school had been running in the premises for over 30 years. It was constructed on the land belonging to the Petitioner who was one of the founder members and Manager of the School. The school was receiving 95 per cent aid from the government on Delhi pattern. The Petitioner had embezzled substantial amount of funds received from the government by way of aid. She was, therefore, made to draw money along with the District Education Officer. The school was managed by an elected body. Elections took place on 6th December, 1987 in which Respondent No. 2 was elected as President and Respondent No. 3 as Manager. The list of office bearers of the governing body was sent to the Registrar of Firms and Societies. The Petitioner was divested of the powers as Manager by the duly constiutted elected body. The eviction proceedings were challenged as totally sham on numerous grounds. Some Chaman Lal had been put up as Respondent therein. In fact, Chaman Lal s/o Duni Chand has filed an affidavit in the civil Court stating that he was never President or member of the governing body of the school nor he appeared in the Court of the Rent Controller, Amritsar, in any proceedings filed by the Petitioner. The Petitioner, it was further pointed out, only owned the land underneath the school and the portion of the building from which ejectment was sought was delineated in red in the plan filed; in the ejectment application. This was only a part of the total building which comprises of 12 rooms and a hall besides open ground. The school had about 300 or 350 students besides a staff and because of the aforesaid action on the part of the Petitioner the students were facing undue hardship and their studies were suffering. The above reply was supported by affidavit of Shri Jagdish Singh, Respondent No. 2, who is stated to have been elected as President of the governing body for the current year.

None of the material facts averred in the petition have been specifically denied. For instance, it is not controverted that the Petitioner obtained an order of ejectment from the Court of Rent Controller; that she took possession of the premises through execution of the order of ejectment; that the civil Court restrained the Petitioner only from alienating the property or parting with possession thereof. It must, therefore, follow that all these facts stands admitted. It is equally clear that until setaside, the order of Rent Controller and proceedings for delivery of possession through agency of the Court must be assumed to be valid. Not only that the proceedings before the Rent Controller including the proceedings for delivery of possession must be assumed to be valid till set a side, the Civil Court''s order dated 12th May, 1989 proceeds on the assumption that possession had, in fact, been delivered to the Petitioner. The delivery of possession of the property in dispute is a fait accompli. Here, it may be pointed out that there is a vital distinction between a ''claim'' on the one hand and a dispute'' giving rise to apprehension of breach of peace on the other hand. What the members of the staff of the school have put forward before the Executive Magistrate is a claim. It cannot be described as a dispute where intervention of the Executive Magistrate was called for in order to prevent breach of peace. An Executive Magistrate acquires jurisdiction only in order to prevent breach of peace between the two or more parties with regard to possession of immovable property. He does not have jurisdiction to act as a Supreme Court in order to set the alleged wrong right. The aggrieved party must have rennedy in the competent Court. In facts of the present case, admittedly possession had been taken the rightly or wrongly by the Petitioner, the possession cannot be taken back except by instituting annropriate proceedings in the competent Court. The forum for such a relief is not the Executive Magistrate u/s 145 of the Code. In coming to this conclusion, I am not unmindful of the hardship caused to the students for no fault of theirs. Mere hardship, however, great does not justify throwing the law to winds. The school society may, therefore, take appropriate proceedings in the Court of competent jurisdiction to legally acquire possession. The forum of the Executive Magistrate is not the correct forum and in the facts and the circumstances discussed above, resort to proceedings under Sections 145 and 146 of the Code is a clear abuse of the process of the Court. The said proceedings are, therefore, quashed.