Madras High Court
Dr.Christopher Asir vs The Revenue Divisional Officer on 25 July, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:25/07/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.R.C.No.504 of 2008 and M.P.No.1 of 2008 1.Dr.Christopher Asir, Bishop of Church of South India, Madurai and Ramnad Diocese, East Veli Street, Madurai. 2.Dr.V.George Selvakumar, Vice Principal, American College, Madurai-02. 3.Dr.M.Davamani Christopher, Bursar of American College, Madurai-02. . . . Petitioners Vs. 1.The Revenue Divisional Officer, Madurai. 2.Dr.Chinnaraj Joseph Jayakumar 3.T.V.Anbunathan 4.MR.Anbudurai 5.Rajkumar 6.Premkumar 7.Prabakaran 8.Rajendra Pandian 9.Navaneethakannan 10.Winfred Thomas 11.Jayakar . . . Respondents Criminal revision case is filed under Sections 397 and 407 of the Code of Criminal Procedure, against the order dated 02.06.2008 passed in M.C.No.595 of 2008 by the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai. !For petitioners ... Mr.T.R.Rajagopalan, Senior Counsel, for Ms.N.Krishnaveni ^For 1st respondent... Mr.L.Murugan, Government Advocate, (Criminal side) For respondents ... Mr.Issac Mohanlal 2 to 11 :ORDER
Challenge in this criminal revision case is to the order dated 02.06.2008 passed in M.C.No.595 of 2008 by the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai.
2.Before perpending the rival submissions made by either counsel, it has become shunless to prorate the milieu under which the impugned order has been passed by the first respondent viz., the Revenue Divisional Officer, Madurai.
3.The first petitioner is the Ex-Officio Chairman of the Governing Council of American College, Madurai. The Governing Council will appoint Three Members Committee headed by the Chairman i.e., Bishop to select the Principal of the College. The second respondent herein has been appointed as the Principal by the Committee and he has taken charge on 01.06.2006. The second respondent has applied to the Director of Collegiate Education, Chennai, for getting leave, since he has been invited to attend a conference at Oberling Oxio, USA from 11.04.2008 to 13.04.2008 and also to attend another conference at United Kingdom from 24.04.2008 to 02.05.2008. According to the Service Rules, if any teaching staff including the Principal wants to take leave for going abroad, he has to necessarily apply to the Director of Collegiate Education for getting permission. The second respondent has taken leave from 09.04.2008 and since then he has not attended the College. The second respondent has not informed either to the Bishop of the College or the Governing Council to the effect that he is going to cancel the leave and attend the College. The Governing Council has appointed the Vice Principal as Principal in charge of the College and the Vice Principal has taken charge on 09.04.2008. All of a sudden, on 12.04.2008 the second respondent has entered into the room of the Principal and claimed that he is the Principal of the College and he forcibly removed the Vice Principal. He has also suspended the Principal in-charge and directed him not to enter into the College premises. On 19.04.2008 the meeting of Governing Council has been convened and the second respondent has been suspended from the said date. The second respondent has given a police complaint and subsequently, the proceedings under Section 145 of the Code of Criminal Procedure has been initiated. The first respondent has passed an interim order on 25.05.2008 and thereby directed both the parties not to cause any untoward incident and further the first respondent has passed his final order in M.C.No.595 of 2008 on 02.06.2008. Against the impugned order passed in M.C.No.595 of 2008 by the first respondent, the present criminal revision case has been filed.
4.The learned senior counsel appearing for the revision petitioners has succinctly contended that the dispute between the parties is only in respect of the right to manage the College in question and the same has not come within the purview of Section 145 of the Code of Criminal Procedure and the first respondent, without considering the provisions of Section 145 of the said Code, has erroneously passed the impugned order and therefore, the impugned order passed by the first respondent is liable to be set aside.
5.Per contra, the learned counsel appearing for the respondents 2 to 11 has also equally contended that the second respondent has been functioning as the approved Principal and Secretary of the American College since 01.06.2006 and on 14.03.2008 he applied to the Director of Collegiate Education so as to get sanction of unearned leave on private affairs for a period of 24 days, starting from 09.04.2008 to 02.05.2008. The Director of Collegiate Education has sanctioned the leave very belatedly and under the said circumstances, the second respondent has not been able to avail the leave on 09.04.2008 and he subsequently cancelled the leave and informed to the Director of Collegiate Education on 12.04.2008 and in the meanwhile, the Bishop has sent a letter to the second petitioner and thereby directed him to take charge of the post of Principal and Secretary and on 12.04.2008 at about 9.00 a.m., the Vice Principal has locked the Principal Office and try to prevent the second respondent from entering into the Office and commotion has been created and the second respondent has suspended the Vice Principal and subsequently a Police complaint has been lodged on 20.04.2008 and further the District Revenue Officer has conducted a meeting and all his efforts have become futile and the Bishop without any intimation to the second respondent has created fake records and now the second respondent has been acting as the Principal of the College and the first respondent, after considering all the contentions raised on either side, has rightly passed the impugned order dated 02.06.2008 in M.C.No.595 of 2008 and under the said circumstances, the impugned order passed by the first respondent is not liable to be set aside.
6.On the basis of divergent arguments advanced on either side, it is easily discernible that the dispute betwixt the parties is only with regard to the right of management of American College.
7.At this juncture, it would be apropos to look into the provision of Section 145(1) of the Code of Criminal Procedure and the same reads as follows;
"Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person, or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."
8.From the close reading of provision of the said Section, it is needless to say that the said Section is only applicable to a dispute that exists concerning any land or water or the boundaries thereof and the same is not applicable in respect of right of management. In the instant case, as noted down earlier, the dispute between the parties is only with regard to the right of management of American College. Since the provision of Section 145(1) of the said Code is only applicable with regard to a dispute exists concerning any land or water or the boundaries thereof, it is pellucid that the provision of the said Section is not at all applicable to the present dispute that exists betwixt the parties.
9.The learned senior counsel appearing for the revision petitioner in support of his contention has meticulously drawn the attention of the Court to the following decisions;
(a)In 1990 Criminal Law Journal 1906 (Allahabad High Court) (Committee of Management Sri.V.D.Misra Higher Secondary School, Kanpur Nagar Vs. Additional City Magistrate (5) Kanpur Nagar and others) at paragraph 10, it has been held as follows;
"The provisions contained in the Education Act and the Regulations have provided as to what will happen if the principal is not functioning. The fact of continuance on the charge of the office of the principal of an institution has to be decided either by the authorities under the said Act or by competent civil Court, if permissible under the law. It is beyond the scope of the proceedings under Section 145 of the Code of Criminal Procedure, to permit the Magistrate to venture deciding an issue as to whether or not a principal has to continue to discharge the duties of the principal of the institution."
(b)In 1978 All Criminal Cases 24 (Bhagwatidin Tiwari Vs. State of U.P.) it has been held that the dispute between the parties with respect to the right to manage the College is essentially a dispute regarding the right of user of the buildings and land of the College as contemplated by Section 147 of the Code of Criminal Procedure and is not a dispute with respect to the possession of the buildings and land of the Colleges as contemplated by Section 145 of the Code of Criminal Procedure, as the phrase 'user of land' in Section 147 of the Code of Criminal Procedure is of wide import. Once it is held that the dispute between the parties is not with respect to possession of land proceedings under Section 145 of the Code of Criminal Procedure are misconceived and the preliminary order passed under Section 145 of the Code of Criminal Procedure, would be clearly illegal.
(c)In 1976 Criminal Law Journal Journal 1217 (Ghananand Vs. State) it has been held that if any servant or agent claims possession over the property in dispute on his own account he can take the aid of Section 145 of the Code of Criminal Procedure, for his possession being retained. But, if he claims to be in possession on behalf of the master or the principal, and nothing beyond it, he cannot ask for the protection of his possession in proceedings under Section 145 of the Code of Criminal Procedure.
(d)In 1975 Criminal Law Journal 1422 (Punjab and Haryana High Court) (Kirpal Singh Jolly Vs. State of Punjab and others) it has been held that where the record of the proceedings under Section 145 showed that the dispute was concerning the management and funds of the College and not the College building which was already in possession of the first party, Section 145 of the Code of Criminal Procedure, would not apply.
(e)In 1975 Criminal Law Journal 1436 (Allahabad High Court) (Sheo Murat Upadhya Vs. State and others) it has been held that the right to manage an educational institution is not covered by the provision of Section 145 of the Code of Criminal Procedure, under which the Court is merely concerned with a dispute regarding possession of immovable property. In the case of a dispute regarding the right to manage educational institution, proceedings under Section 145 of the Code of Criminal Procedure and preliminary order attaching the school are misconceived.
10.From the close reading of the decisions referred to above, it is made clear that the provision of Section 145 of the Code of Criminal Procedure can be invoked only in respect of a dispute that exists concerning any land or water or the boundaries thereof. As noted down earlier, the present dispute is only in respect of the right of management of American College. Therefore, it is quite clear that the impugned order passed in M.C.No.595 of 2008 by the first respondent is totally illegal and the same is against the provision of Section 145(1) of the Code of Criminal Procedure.
11.Now the Court has to analyse the nature of the order passed by the first respondent. The first respondent, after making supernumerary discussion, has ultimately passed the following directions;
"i)Dr.Chinnaraj Joseph Jaikumar (A party) who was the Principal and Secretary as on 09.04.2008 before proceeding on leave shall continue to be the Principal and Secretary of the American College as on 02.05.2008 the date of the order under Section 145(1) of the Criminal Procedure Code and shall exercise such powers and duties as provided in the bye laws and manage the affairs of the College;
ii)Dr.V.George Selvakumar (B party) who was the Vice Principal of American College as on 09.04.2008 shall continue to act as Vice Principal of the American College; as on 02.05.2008, the date of the order under Section 145(1) of Criminal Procedure Code was passed by this Court and shall exercise such powers and duties as provided in the bye laws of the College; and
iii)Thiru.M.Davamani Christopher who was acting as Bursar as on 09.04.2008 shall continue to be the Bursar of the American College, Madurai as on 02.05.2008 the date of the order under Section 145(1) of Criminal Procedure Code was passed by this Court and shall look after the financial management of the American College as provided in the bye laws and manage the affairs of the College."
12.It has already been taunted earlier that the provision of Section 145(1) of the Code of Criminal Procedure is not at all applicable to the facts of the present dispute that exists betwixt the parties. The first respondent without adhering the provision of Section 145(1) of the Code of Criminal Procedure, has erroneously passed the impugned order and it is not an adulation to say that the first respondent has not at all known the rudimentary principle of law. Further he has exceeded his limit by way of passing the impugned order. Since the first respondent is not at all embowered to pass the impugned order under Section 145 of the Code of Criminal Procedure, it is needless to say that the impugned order is liable to be set aside.
13.In view of the discussion made earlier, it is very clear that the argument advanced by the learned senior counsel appearing for the revision petitioner is really having subsisting force and whereas the argument advanced by the learned counsel appearing for the respondents 2 to 11 is sans merit.
14.In fine, this criminal revision case is allowed and the impugned order dated 02.06.2008 passed in M.C.No.595 of 2008 by the first respondent viz., the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai is set aside. Consequently, connected M.P.No.1 of 2008 is closed.
gcg To:
1.The Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai.