Muktanand Chaturvedi vs State and Another

H.N. Kapoor, J.—This revision is directed against the order dated 2-7- 1977 of Additional City Magistrate, Varanasi, initiating proceedings u/s 145 Code of Criminal Procedure and another order passed u/s 146 Code of Criminal Procedure attaching the property. Certified copy of the other order has not been filed, but there is a reference of that order in the affidavit filed along with this revision petition. Three counter affidavits and four rejoinder affidavits have been filed 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, Sanka-thaghat, Varanasi. Originally the Management Committee under the Presidentship of one Laxmi Narain Rastogi, was managing the affairs of this Institution. Laxmi Narain Rastogi resigned and another 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 withrawn his resignation, as according to him 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 Rastogi. The City Magistrate then passed an order u/s 144 Code of Criminal Procedure restraining Anjani Nandan Misra and the members of his Committee from putting any obstruction in the working of the Committee of Management of the Institution established under the Presidentship of Laxmi Narain Rastogi. A petition u/s 482 Code of Criminal Procedure was filed for quashing the proceedings u/s 144 Code of Criminal Procedure. That petition was allowed by me by my order dated 9-9-1975 in Criminal Misc. Application No. 4318 of 1975. The case is reported in 1976 AWC 84. 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 Committee of which he was the Secretary while Mukta Nand Chaturvedi, Petitioner, became the Secretary of the Managing Committee under the Presidentship of Anjani Nandan Misra. Both the parties claimed right to manage the Institution and to possess assests and properties of the Institution. On the police report the Additional City Magistrate, Varanasi was satisfied that there was apprehension of breach of peace. He therefore passed the preliminary order dated 2-7-1977 u/s 145 Code of Criminal Procedure and by a subsequent order attached the property of the Institution under Sec-146 Code of Criminal Procedure 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 Committee headed by Sri Anjani Nandan Misra be appointed as Receiver of the Institution. learned Counsel for the Petitioner has challenged the preliminary order in the order u/s 146 Code of Criminal Procedure on several grounds. First ground is that the matter was concluded by the order passed by this Court in the case u/s 144 Code of Criminal Procedure and the possession of the Managing Committee headed by Anjani Nandan Misra had been recognised and as such it was not open to the learned Magistrate to disturb that possession by interfering u/s 145 CrPC. 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 Magistrate (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 manner which was against the rules. The matter was, however, subjudice and proper steps would be taken after the decision of the Court. Now it transpires that a civil suit had already been filed by the Institution and Sheo Nath Pandey being civil suit No. 179 of 1976. This was decided exparte 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 Secretary. Copy of this order is Annexure 1 to the supplementary counter affidavit filed on 13-9-1977. The rejoinder supplementary affidavit filed on 26-9-1977 shows that an appeal has been filed against that order and a restoration application 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 24-3-1977 stands until it is set aside. It is stated in one of the counter affidavist 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 u/s 144 Code of Criminal Procedure 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 annexed as Annexure-B to the counter affidavit dated 12-7-1977. The allegations about his being history sheeter have been sworn on personal knowledge by Sheo Nath Pandey himself. In the rejoinder affidavit which was sworn by Rajiv Nandan Misra, son of Anjani Nandan Misra and was filed on 26-8-1977, in para 10 whereof 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, in 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 was neither a history sheeter nor is he a history sheeter and that the extract of Register No. 8 filed did not appear to be a genuine document. For the purpose of this case when this supplementary rejoinder 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 specifically that he was a history sheeter. On merits the order passed by the learned Magistrate u/s 146 Code of Criminal Procedure appears to be just and proper as an independent person who is Basic Shiksha Adhikari has been appointed as Receiver. He will certainly be required to hand over possession of the Institution to the person or persons whoever is ultimately 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 u/s 145 Code of Criminal Procedure in case of an educational institution 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 Upadhya Vs. State and Others, , decided by Bakshi, J. and the case of Onkar Nath Tewari v. Ram Anjor 1973 CriLJ 1885 decided by K.B. Srivastava, J. In the latter decision order passed was with regard to the administration, management etc. and the Administrative Officer attached Administration Management, Managing Committee, Land Building, appurtenances thereto, furnitures, 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 proceedings u/s 145 Code of Criminal Procedure 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 ALJ 17 (supra), the dispute was with regard to the rights of the parties to manage an educational institution. In that context the learned Judge observed that proceedings u/s 145 Code of Criminal Procedure do not lie although it might have been possible to take proceedings u/s 147 Code of Criminal Procedure. It is significant that that very learned Judge in an earlier case in the case of M.G.M.T. v. S.D.M. Deoria 1975 ALR 235 , had refused to interfere with an order of attachment passed u/s 146 Code of Criminal Procedure attaching the properties of an educational Institution u/s 146 Code of Criminal Procedure. It can therefore, be said that there is no absolute bar in proceedings u/s 145 Code of Criminal Procedure and 146 Code of Criminal Procedure in respect of Immovable 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 Immovable property only and not with regard to the management or 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 Immovable 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. learned Counsel for the Petitioner has argued that according to the preliminary order the dispute was concerning management and as such the proceedings u/s 145 Code of Criminal Procedure 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. 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 the proceedings were started in respect of the Immovable property only and not in respect of the management. The order passed u/s 146 Code of Criminal Procedure is also clear on the point that relations between the parties were strained on the issue 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 considered to be illegal. learned Counsel for the applicant has also argued that the members of either of the Managing Committees could not be considered to be in actual possession of the Institution and as such the proceedings u/s 145 Code of Criminal Procedure 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 Braja Sundar Deb Vs. Moni Behara and Others, , the Supreme Court went to the extent of holding that proceedings u/s 145 Code of Criminal Procedure could lie even in respect of fishery rights, even though the party claiming such right is to exercise the right during a particular season on the year only while the rights were to be enjoyed by other persons during the remaining 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 affidavit 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 arriving 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 Receiver by the Magistrate.