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Judgment
S.S. Sudhalkar, J.
This writ petition was been filed by Shri Ram Educational Society (hereinafter referred to as ''the Society''), The Mall, Amritsar through its Secretary Shri R.K. Kumaria against the Executive Magistrate and Balbir Sain Khanna. The said Balbir Sain Khanna was a petitioner before the Executive Magistrate, Amritsar in the case titled Balbir Sain Khanna, Hony. Secretary, Shri Ram Educational Society, Shri Ram Ashram, Senior Sec. School, The Mall, Amritsar v. Smt. Nirmal Chawla, ExPrincipal, Shri Ram Ashram Senior Secondary School, The Mall, Amritsar being file No. 93/3GA. By order Annexure P6 dated 8.11.1994, the learned Executive Magistrate ordered the Governing Council headed by Shri Kundan Lal Chaudhary, Advocate as elected under the constitution of Shri Ram Ashram Society, serving Hony. Secretary, Balbir Sain Khanna (present respondent No. 2) to be entitled to possession of disputed property/administration until evicted therefrom in due course of law. The party No. 2 in the said case i.e. Smt. Nirmal Chawla was ordered not to dispossess such possession.
For challenging the said order, this Criminal Writ Petition has been filed.
It was interesting to note that in this Criminal Writ Petition and in the Revision, Annexure R2/1, the Society is the petitioner. Mr. R.K. Kumaria has filed this petition as Hony. Secretary of the Society. The revision was filed by R.P. Verma as the President of the Society against the impugned order. Again, this writ petition has been filed after a considerable time after the passing of the impugned order.
I have heard the learned Advocate for the petitioners, the learned Assistant Advocate General for respondent No. 1 and learned Advocate for respondent No. 2.
The learned Advocate for respondent No. 2 has taken a preliminary objection that this very order Annexure P6 which is challenged in this petition is also challenged by the petitioner in Criminal Revision No. 67 of 15.12.1994 in the Court of learned Additional District Judge, Amritsar, the copy of which is produced at Annexure R2/1. According to the learned Advocates appearing for the respondents, the petitioner cannot invoke the remedy under the Constitution when a specific remedy is provided under law and is being availed of by the petitioner.
So far as this preliminary objection is concerned, the learned Advocate for the petitioner has contended that in this petition, he has challenged the order of the Executive Magistrate so far it relates to the transfer of the management and in the revision application, he has challenged the order so far as it relates to possession. He has also argued that when both the remedies are available, the right of obtaining one of the remedies should not be declined to the petitioner because he has availed of another remedy.
The learned Advocate for the petitioner has cited before me the case of Carl Still Gmbh and another v. The State of Bihar and others, A.I.R. 1961 S.C. 1615. He has relied on the observations of the Hon''ble Court that when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.
It is not possible to know as to how the above judgment will help the petitioner. It is not the case of the petitioner that the proceedings in a revision before the learned Additional Sessions Judge (which are still pending) are ultra vires.
The learned Advocate for the petitioner has also relied on the case of L. Hirday Narain v. Incometax Officer, Bareilly, A.I.R. 1971 S.C. 33. In that case, it is held that when the petitioner filed writ petition instead of availing of statutory remedy and High Court entertained the petition and gave hearing on merits, the petition cannot thereafter be rejected on the ground that statutory remedy was not availed of. The facts of that case are also different from that of the present case. In the present case, it is the objection of the respondents that statutory remedy has been availed of and the same, that is the revision petition, is pending.
Because of the above facts, these authorities are not applicable to the facts of the present case.
The learned Advocate for the petitioner has also cited before me the case of State of U.P. v. Mohd. Nooh, reported in A.I.R. 1958 S.C. 86. It has been observed by the Supreme Court in the said case that the existence of other adequate legal remedies is not per se a bar to the issue of certiorari and if in a proper case it may be the duty of the superior Court to issue a writ of certiorari to correct the errors of an inferior Court or Tribunal.
The fact that the other remedy is availed of and is still pending, shows that this principle cannot be applied to the present case.
The learned Advocate for the petitioner has also cited before me the case of Collector of Monghyr and others etc. v. Keshav Prasad Goenka and others etc., reported in A.I.R. 1962 S.C. 1694. In the said case it has been held that the High Court has a discretion to grant relief under Article 226 even if there are other alternative statutory remedies.
As stated earlier, this is not a case where the other statutory remedies are not availed of. Therefore, the principles in this case also do not apply to the facts of the present case. It is pertinent to note that the impugned order was passed on 8th November, 1994 while this writ petition to challenge the same, has been filed on 24th of April, 1996. No reason is shown as to why after so much delay, the petitioner thought of availing of another remedy. The earlier remedy which has been availed of by the petitioner is by way of Criminal Revision application, which is Annexure R2/1.
The learned A.A.G. has relied on the case of Dharampal and others v. Smt. Ramshri and others, A.I.R. 1993 S.C. 1361. It has been held in that case that second revision application before the High Court cannot be entertained in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') after the dismissal of the revision by the Sessions Court.
The learned A.A.G. has also cited before me the case of Deepti @ Arti Rai v. Akhil Rai and others, reported in J.T. 1995(7) S.C. 175. It has been held by the Supreme Court in the said case that when the first revision application was dismissed by the Supreme Court, the second revision after the first dismissal was not maintainable and the inherent powers under Section 482 of the Code could not be utilized for exercise of powers which are expressly barred by the Code.
Therefore, it is clear that if first revision application of a party is dismissed by the Sessions Court, the High Court cannot entertain the second revision application even in its powers under Section 482 of the Code.
The learned Advocate for the petitioner has argued that he is invoking the jurisdiction of the Court by way of a writ of certiorari and the bar of second revision will not be applicable to this writ petition. However, it can be seen that petitioner filed earlier revision as back as on 14.12.1994 which is still pending. There is no reason shown as to how the petitioner has right in such a case to invoke the powers of this Court under Article 226 of the Constitution. It is not that the revision before the Sessions Judge is not competent. A competent Court can come to a decision of the case and unless that decision is legally set aside, it shall be final but before any decision is given by that Court, no party can approach a higher Court on a same point reserving his right to make submissions in both the cases. Therefore, considering all these aspects I find that when a criminal revision under the Code is pending before a Court of Sessions, the writ petition to challenge the same order which is under challenge in the revision application, is not maintainable.
As stated above, the learned Advocate for the petitioner has also made a submission that the writ petition is with regard to the order relating to management and the revision application is with regard to the order regarding possession. Two things will come in the way for accepting this contention. Firstly, the revisional Court, which is seized of a case, will have to decide the question regarding management. Moreover, the order of the learned Executive Magistrate cannot be separated for the purpose of possession and management. The learned Executive Magistrate has held that the Society headed by S. Mubarak Singh through Hony. Secretary, Balbir Sain Khanna (respondent No.2) was in possession of the disputed property and Smt. Nirmal Chawla, party No. 2 before the Executive Magistrate had nothing to do with the administration and possession of the Society/School and, therefore, he ordered that the Governing Council headed by Kundan Lal Chaudhary, Advocate, as elected under the constitution of the Society was entitled to possession/administration until evicted therefrom in due course of law. Smt. Nirmal Chawala was ordered not to disturb possession until such eviction.
It is also pertinent to note that the relief claimed in this writ petition is not independent of the observations in the impugned order Annexure P6. If there is any dispute regarding management, it was a different matter and instead of challenging the order Annexure P6, the petitioner could have availed of remedy under the civil law. It is argued on behalf of the respondents that a criminal writ petition for direction under ''certiorari'' jurisdiction is not maintainable. To this, the learned Advocate for the petitioner replied that he has filed the petition invoking the powers of this Court under ''certiorari'' jurisdiction and it is for this Court to treat this petition as a civil writ petition or a criminal writ petition. However, though the petitioner''s Advocate has argued that this is a writ petition invoking the powers of ''certiorari'' jurisdiction, in the title of the petition and in the relief clause, the words "direction especially in the nature of certiorari" are erased and, therefore, it is clear that the petitioner has not asked for relief under the ''certiorari'' jurisdiction in this writ petition. Moreover, he has asked for quashing of Annexure P.6, the relief of which is also asked for in the revision petition.
One more thing to be noticed is that this petition has been filed after long lapse of time, as mentioned above. The learned Advocate for the petitioner has argued that Limitation Act is not applicable. However, when the petition is filed after an unexplained delay, the writ Court cannot come to the rescue. The fact that the revision petition is already filed, weakens his case on this point also.
Because of the above facts, this petition is held to be not maintainable. The writ petition is, therefore, dismissed on this preliminary point only.