P L D 1952 Lahore 639 (PLP)

CORNELIUS, J.‑This is a petition by the respondents Mr. Jalil Javed and Dr. Nazeer Ahmad Khan describing them selves as Bursar and Manager respectively of the "Jinnah, College and High School for Girls" at Sialkot, calling in question an order made under section 145, Criminal P. C. by a 1st Class Magistrate of Sialkot, whereby it was held that the petitioner Sh. Muhammad Sharif had been in possession of a building owned by one Siraj Din in which the institution to which the respondents are attached was located and that he was dispossessed within two months of the filing of the peti tion, and directing that possession should be delivered over by the respondents to Sh. Muhammad Sharif. A petition was filed before the Sessions Judge of Sialkot by the respondents seeking a recommendation for the same purpose to the High Court, which was dismissed. After careful examination of the entire evidence led in the case, I am satisfied that the order of the learned Magis trate cannot be maintained. The dispute between the parties clearly relates to the right of control and management over the institution named above, and this dispute only concerns "land" i.e., the building in which the institution was housed at the time of the filing of the petition, in an incidental sense. There is between the parties no dispute which affects "land" in the sense which I conceive to be necessary for application of the somewhat special provisions of section 145, Criminal P. C. For a proper understanding of this case it is necessary to state the facts at some length. The "Jinnah College and High School for Girls" was commenced in June 1949, by a person named Qudrat‑ul‑Amin. The founder remained retaining his connections with the institution only till the following Sep tember when it seems the petitioner Sh. Muhammad Sharif took over charge. Mr. Jalil Javed, one of the respondents, received an appointment on the staff of the College from Sh. Muhammad Sharif on the 13th November 1949. According to him the only equipment in the college at the time consisted of a chatyai and a single chair, but Sh. Muhammad Sharif has stated that there were eight chairs and a dining table, which he claims belonged to him. Sh. Muhammad Sharif collected fees from the pupils and admits that contributions were also received. from the public with the aid of the pupils, to whom receipt books for donations, which had been printed to the number of 500 had been distributed. In June and November 1950, a sum of about Rs. 300 was collected by means of these donations and about a month later some sixty chairs were purchased at a cost of Rs. 210 of which only Rs. 100 had been paid at the time of the proceedings. As for the building, the institution was first located in a house in Nihal Chand Street, from which it shifted to a building on Butchery Road, and from there, it was shifted on the 17th September 1950, to another building on Circular Road. On 4th February 1951, the College shifted to the premises in which it was located at the time of the filing of the petition, viz., a building belonging to one Siraj Din on what is described as Nalla No. 1 Sh. Muhammad Sharif admitted in his statement that the lease deed in respect of the building on Circular Road was obtained by Mr. Jalil Javed in his name and that Siraj Din's building was rented in the name of second respondent Dr. Nazeer Ahmad acting as Manager. There is proof of the fact that at a meeting of the College Managing Committee held on the 11th February 1951, Dr. Nazeer Ahmad stated that he had executed a rent deed in respect of this building, and had paid the rent for the whole month in advance, on the 10th February. Sh. Muhammad Sharif declared that this was done without his knowledge and in fact, in violation of his rights, as he himself was the lessee. The meeting of the 11th February 1951, was not attended by Sh. Muhammad Sharif although it bad been called at his instance at a time and place fixed by him. In any case the minute book Exh. D. A., shows sufficiently clearly that on the 14th February 1951, when the following meeting was held, the fact was brought to Sh. Muhammad Sharif's notice. It will be seen presently that no violation of Sh. Muhammad Sharif's rights was involved in the execution of the rent deed by Dr. Nazir Ahmad, Although Sh. Muhammad Sharif was not the founder of this institution, it seems that after the departure of Qudrat‑ul- Amin, he had been dealing with it as if it were his private property. On the 21st January 1951, at the invitation of Sh. Muhammad Sharif, a number of friends and supporters of the institution, and members of the staff met in the College premises and decided that the College should be run by a Managing Committee to consist of Sh. Muhammad Sharif as President, Mr. Jalah as Secretary, Dr. Nazeer Ahmad as Manager, Mr. Jalil Javed as Bursar and Mr. Dar as Propaganda Secretary. Each of these persons took an oath of loyalty to the institution declaring that he would "discharge his high responsibility with true heart". Sh. Muhammad Sharif said that the move for setting up a Managing Committee was suggested by Mr. Jalil Javed and the object was to attract public support for the institution to save it from financial collapse. At the same time, Sh. Muhammad Sharif declared that the constitution of the Committee did not, in any way, affect his sole proprietorship. He declared that it was untrue that the trouble which broke out between him and the Com mittee very soon after was due to his wishing to collect the fees himself, and the unwillingness of the Committee to allow him to do this, yet he declared that the Committee had no power to collect the fees because he had never handed over charge of the institution to them. Mr. Javed's statement on the point is somewhat more acceptable. He said that members of the public objected to Sh. Muhammad Sharif treating the institution as if it were his private property when he was receiving donations towards its upkeep from the public and they carried this complaint direct to Sh. Muhammad Sharif, who sent for Mr. Jalil Javed and they agreed that a committee should be appointed. The second meeting of this Committee was held on the 28th January and as the minutes show Sh. Muhammad. Sharif, who presided, presented the accounts of the past two months, after which the Committee proceeded to distribute among the members their various duties and functions. The President was to preside at all meetings and preserve order and was empowered to summon emergent meetings in case of need. The Secretary was responsible for keeping the record of the College and all acts of the Committee and was to issue agenda for meetings. The manager was responsible ‑ for all acts of organization and was empowered to appoint and dismiss employees after consultation with the Committee. The Bursar was to keep all accounts of income and expenditure, to present annual accounts, to receive fees and subscriptions through the Principal and the Head Mistress, to control the staff under him, to appoint a responsible person to run the office of the College and to open an account for the College in a local bank to be operated under the joint signature of himself and the President. The Propaganda Secretary was charged, with the duty of making known the purposes and needs of the College to the public. These minutes were presented at the next meeting held on the 4th February 1951, and at first Sh. Muhammad Sharif, who presided, noted that they could not be approved because they were incomplete, but later he crossed this out and recorded his approval. On the 4th February Sh. Muhammad Sharif moved a resolution to the effect that he had decided that the Committee was not necessary and called upon the members to resign their offices. One member Mr. Dar agreed with him, but the others namely, Mr. Jalil Javed, Dr. Nazeer Ahmad and Mr. Jalali strongly opposed the move. Sh. Muhammad Sharif at this meeting said that before the Committee was formed, he was assured that each member would collect Rs. 250 but no discussion took place on this point at the first meeting or at the second meeting. It was necessary that each member should collect Rs. 250 immediately. Moreover, he was not satisfied with the powers given to him as President and wished that the powers of the members should be re-allotted, Dr. Nazeer Ahmad said in reply that the question of contribu tions from members was fully discussed at the first meeting and it was decided that the effect of receiving such contribu tions would be to make the institution private property, which would obstruct its proper working. Therefore, it was decided to run the institution on public subscriptions, and other sources of income and although this was not recorded at the time, it was unanimously agreed. He added that reconsideration of the President's powers and even of the question of contribu tions did not necessitate break‑up of the Committee. The majority being against the resolution, it was lost. These minutes were signed by Mr. Jalil Javed on the 11th February 1951; as "Acting President of the Managing Committee" in the absence of Sh. Muhammad Sharif. At that meeting several matters were discussed which it is not necessary to detail here. One such matter, viz., the execution of a rent deed for College building by Dr. Nazeer Ahmad, has already been .mentioned. Dr. Nazeer Ahmad as Manager also sought authority to entertain new staff, and made the suggestion that as the President had been connected with the College since its foundation and had even contributed some capital, some suitable remuneration should be fixed for him, and it was decided that he should be asked to put his requirements in writing. It was decided also that the Manager should ask the President to hand over all the receipt books and stationery belonging to the institution in his possession. The next meeting was called for the 14th February 1951, at 3 p. m. Sh. Muhammad Sharif presided and there is a note in his handwriting under the minutes of the previous meeting which reads as follows :‑ "All proceedings are improper and contrary to law. I do not need this Committee. Therefore, I dismiss it. I break it up:- This writing has been crossed out and apparently this was not done by Sh. Muhammad Sharif. The record of the proceedings for that day as well as the evidence of Mr. Jalil. Javed shows that Sh. Muhammad Sharif had apparently decided that he would not allow the Committee to function any longer. His own statement regarding the events at this meeting is that on this day he abolished the Committee because it was "based on no principles" and had been "contravening principles". He accordingly declared that he had dismissed the Committee whereupon the respondents snatched away the minute book from him. After making the note which has been reproduced above, he handed over the minute book to Chaprasi Jan Muhammad from whom the respondents snatched it away. The version of the opposite side is more elaborate. It is that Sh. Muhammad Sharif first asked the members of the Com mittee whether they approved the minutes of the previous meeting and saying that he himself had not attended it, declared that he would sign if the members approved. When the approval was accorded, he made an entry in the book, closed it and pushed it to the right hand side of the table after which he made a sign to Jan Muhammad Chaprasi, who was standing in the door, to remove the book. Jan Muhammad thereupon came forward, took the book and went towards the courtyard. Mr. Jalil Javed at once went after him and caught hold of him whereupon Jan Muhammad threw the book in the direction of Sh. Muhammad Sharif who had by this time come out of the room. Before Sh. Muhammad Sharif could pick up the book, Dr. Nazeer Ahmad had got hold of it. Thereafter the meeting broke up and the evidence of the minute book and Mr. Jalil Javed shows that there was some danger that Dr. Nazeer Ahmad would again be attacked while he was on his way home. Some time later Mr. Jalil Javed had to return to the college from his house to prevent Sh. Muhammad Sharif from carrying away the furniture, etc., from the building. A report and a counter‑report of the incident were filed at the police station. Very soon after‑it is said the very next day Sh. Muhammad Sharif opened a new institution in another building which also he called "the Jinnah College and High School for Girls". About one‑half of the pupils from the institution in Siraj Din's building and a number of staff went over to Sh. Muhammad Sharif and apparently his institution has been running ever since. It is sufficiently clear from this narration of the facts that Sh. Muhammad Sharif's complaints was not as regards posses sion or use of any building but from the outset it was as regards his own powers of management and control in respect of the institution in Siraj Din's building. That this institution was located at the time when the dispute arose in this particular building, is merely incidental ; it has no direct con nection with the dispute at all. Quite clearly, Sh. Muhammad Sharif regretted having parted with his previous total control over the institution, but it is obvious from the evidence. that the Managing Committee was appointed at his instance and with his consent and that this was done in order to provide an assurance to the public that the subscriptions which were being sought from them were being duly applied. Distribution of functions between the members of the Committee which was effected on the 28th January, 1951, was also made with the consent of Sh. Muhammad Sharif. His allegation that he was deceived into approving the minutes at the following meeting on the 4th February is, to my mind, plainly disingenuous. Under this distribution of functions, all fees and subscriptions were to come into the hands of the Bursar, through the Principal and the Head Mistress. It may well be that Sh. Muhammad Sharif considered that this was an intolerable departure from the previous practice under which all this money was handled by him, but I do not think that it lies in his mouth to deny that the new arrangement was made with his consent and knowledge. This assumption perhaps also assists in explaining the move made by Dr. Nazeer Ahmad on the 11th February 1951, to provide suitable remuneration for Sh. Muhammad Sharif out of the funds of the College. It seems, however, that by this time Sh. Muhammad Sharif had decided to part company with the others for he was able within a very short space of time to commence a new institu tion, which suggests that he had‑ been making some preparations before the 14th February 1951, towards this end. In his petition Sh. Muhammad Sharif, declaring that there was a danger of an immediate breach of the peace, gave the following as the grounds of this belief, vii., that the respon dents, in conspiracy among themselves, had turned him out of the institution, had taken possession of his equipment and furniture and did not permit him to enter the College but were bent on making a fight (fasad). In his statement in court he put his claim in the following words :‑ " I have a dispute regarding possession of the College building with the respondents and also regarding the equip ment, etc. I want to take control of the College as I have a right to do." It is difficult to see how control of the College could be claimed by Sh. Muhammad Sharif. It was not an institution of his creation admittedly, though it would appear that for about fifteen months, he had been managing it free of control from any other person. By starting another institution of the same name and nature immediately after the 14th February 1951 when he failed id his attempt to break up the Managing Com mittee of the older institution Sh. Muhammad Sharif has provided a clue to the nature of the thing in which he claims to have proprietorship. It is the running institution which he claims as his own, and on such evidence as was led in the case, it would certainly be difficult to hold that in relation to the older institution, he had any vestige of proprietorship left after he had severed his connection with its Managing Committee and set up a rival institution under the same name and style. Moreover, it would seem likely that the equipment in the older institution, or the greater part of it, at any rate, was bought out of public contributions, and could not be claimed as private property by Sh. Muhammad Sharif or anyone else. The control of the older institution had been placed on the 21st January 1951, in the charge of a Managing Committee, on the basis that it was to be run as a corporate institution‑ Mr. Jahl Javed has used the expression "National School" to describe it. The change had already been effected when the rent deed for Siraj Din's building was executed and, therefore, it would seem that the lease of the school vests prima facie in the Managing Committee, There seems no basis for Sh. Muhammad Sharif's claim that he had in fact rented the building himself. On the con trary, it seems that even the building previously occupied on the Circular Road had been rented in the name of Mr. Jalil Javed. Therefore, so far as possession of the building is con cerned, the claim of the petitioner rests on a most exiguous foundation, so slight indeed that when his claim is set against the claim of the Managing Committee, based on a rent deed and actual possession, the resulting' conflict is hardly worthy of being described as a dispute. In these circumstances I consider that the case as presented by Sh. Muhammad Sharif was lacking in a feature essential to a case laid under section 145, Criminal P. C. vii. it did not involve any dispute concerning immovable ,property in the true sense. On the record, it is also extremely doubtful whether there was any likelihood of a breach of the peace arising out of possession of the premises in Siraj Din's building continuing with the Managing Committee. Sh. Muhammad Sharif himself stated that after the 14th February, he visited these premises only in order to get books and other equip ment, which is very different from going for the purpose of. asserting his possession over it. It may be that on one or more of these occasions, by reason of the incident which had occurred on the 14th February 1951, a quarrel may have taken place between him and some of those who had been left in charge, but this would not constitute a dispute involving the building itself. Finally, on the question of possession within two months next before the date of the first order under section 145 (I), it seems fairly clear that the finding of the learned. Magistrate is not based on the facts. Possession of the building on the 14th February 1951, was with the Managing Committee and not with Sh. Muhammad Sharif personally. In fact he had never been in personal possession of the building at all. Moreover, his petition was only filed on the 8th of June 1951, nearly four months after his connection with the institution had been finally severed, during which period there was even less foundation for any claim of possession than there was at any time prior to the 14th February 1951. I accordingly allow this petition and set aside the order made by the learned Magistrate. If possession of the building in question has been handed over to Sh. Muhammad Sharif, it will now be restored without delay to the opposite party viz., Mr. Jalil Javed and Dr. Nazeer Ahmad as representatives of the Managing Committee of the older institution bearing the name "Jinnah College and High School for Girls." A. H. Petition allowed.