The Dargah Committee, Ajmer v. State of Rajasthan

N. C. Chatterjee, J. L. Datta and 0. P. Lal, for the appellant.

Dargah Mukat Behari Lal Bhargava and Naunit Lal, for Coinmittee, Ajm1f' respondent No. 2. v.

1961. April 24. The Judgment of the Court was State of _ Rajaslhan delivered by Gajendragadkar J.

GAJENDRAGADKAR, J.-On June 13, 1950, the Munici-pal Committee, Ajmer, respondent 2, issued a notice against the appellant, the Durgah Committee, Ajmer, under s. 153 of the Ajmer-Merwara Municipalities Regulation, 1925 (VI of 1925) (hereafter called the Regulation) calling upon it to carry out certain repairs in the Jhalra Wall which was in a dilapidated condi-tion. The appellant did not comply with the said requisition and so respondent 2 served another notice on the appellant under s. 220 of the Regulation inti-mating to it that the required repairs would be carried out at the expense of respondent 2 and that the cost incurred by it would be recovered from the appellant.

This notice was served on July 3, 1950. Even so the appellant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which, amounted to Rs. 17,414. Under s. 222(4) of the Regulation this sum became recovera-ble from the appellant as a tax. A notice of demand in that behalf was issued on the appellant on April 1, 1952, and in pursuance of the said notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for the recovery of the said amount under s. 234 of the Regulation.

In the proceedings before the learned Magistrate the appellant raised certain pleas. These pleas were reject-ed and an order was passed calling upon the appellant to pay the dues in question by August 30, 1956.

Agaimt this order the appellant preferred a criminal revision application in the Court of the Sessions Judge, Ajmer. The learned Sessions Judge considered the contentions raised by the appellant and held that the view taken by the Magistrate cannot be said to be incorrect and so there was no ground to interfere in revision. F.eeling aggrieved by the dismissal of its r961 rev1s10n application the appellant moved the High

Court of Judicature for Rajasthan in its revisional Dargah J"'" . jurisdiction. Before the High Court, on behalf of Commitl1e. A respondent 1 , t h e S tate o f .naiast u · h an, as we Jl as res-State of ;·ajasthan pondent 2, a preliminary objection was raised that the

criminal revision application filed by the appellant Gajendragadkar J. was incompetent since the Magistrate who entertained

respondent 2's application made under s. 234 was not an inferior criminal court under s. 439 of the Code of Criminal Procedure. This preliminary objection was upheld by the High Court and the criminal revision application dismissed on that ground. It is against this order that the appellant has come to this Court by special leave; and the short question whioh the appeal raises for our decision is whether the Magistrate who entertained the application made before him by respondent 2 under s. 234 was an inferior criminal court under s. 439 of the Code of Criminal Procedure.

Before dealing with this point it is relevant to refer to the scheme of the material provisions of the Regu-lation. Section 153 confers power on the Municipality to order removal or repair of buildings which may be found in a dangerous state. Under this section the Committeee may by notice require the owner of the building, wall or structure to remove t.he same forth-with or cause such repairs as the Committee may consider necessary for the public safety. This section also empowers the Committee to take at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger. If the owner on whom a notice is served under s. 153 com-plies with the requisition nothing more need be done. If, however, the owner does not comply with the requisition served on him the Committee is empower-ed to cause the repairs to be made after six hours' notice to the owner under s. 220. This section provides that whenever the terms of any notice issued under this Regulation have not been complied with the Committee may, after six hours' notice, cause the act to be done by its officers. As a corollary to this provi-sion, and indeed as its consequence, s. 222 empowers the Committee to recover the cost of the work done under s. 220. Section 222(1) authorises the Committee I96I to recover the cost of the work from the person in d~fault. Sub.s~ctions (2) and (3) of s. 222 then deal Conm~1~;;,al~jmer with the questwn as to which person should be held v. to be in default, the owner or the occupier; with that State of llajasthan question we are not concerned in the present appeal. . Sub-section (4) of s. 222 provides that where anyGa1cndragadkar J. money recoverable by the Committee under this sec. tion is payable by the owner of the property, it shall be charged thereon and shall be recoverable as if it were a tax levied by the Committee on the property. By sub.section (5) it is provided that the contract between the owner and the occupier is not affected by this section. It is under s. 222( 4) that a demand notice was served on the appellant by respondent 2. That takes us to s. 234 which provides for the machinery of recovery of municipal claims. This section provides, inter alia, that any tax claimable or recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be reuovered on application to a Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate's jurisdiction belonging to such person. The proviso to this section prescribes that nothing in this section shall prevent the Commit. tee at its discretion from suing for the amount payable in any competent Civil Court. It would thus be seen that the object of making an application to the Magis. trate is to obtain an order from the Magistrate direct. ing the recovery of the tax claimable or recoverable by distress and sale of any movable property belonging to the defaulter. It is under this section that the Magistrate was moved by respondent 2. That in brief is the scheme of the material provisions of the Regulation.

The main argument which Mr. Chatterjee, for the appellant, has pressed before us is that in determin-ing the nature of the proceedings under s. 234 and the character of the Magistrate who entertains an appli. cation made under the said section, it is important to z961 bear in mind that a person in the position of the

appellant has no other opportnnity to challenge the Comm~;;t'~i"'" va~idity of the n?ticc as well as the validity of the

v. claim made agamst him by the Committee. The State of Rajasthan argument is that it would be open to the owner to

conLend that the notice issued under s. 153 is in-Gajendragadhar J. vali<l or frivolous. It would also be open to him to

contend that the amount sought to be recovered from him is excessive and that even if the repairs were carried out they could not have cost as much, and since the scheme of the Regulation shows that it pro-vides no opportunity to the owner to raise those con-tentions except in proceedings under s. 234 the nature of the proceedings and the character of the Magis-trate who entertains them should be liberally constru-ed. The proceedings should be deemed to be judicial proceedings and the Magistrate should be held to be an inferior criminal court when he entertains the said proceedings.

If the 11,ssurnption on which the argument proceeds that the Regulation provides no other opportunity to the owner to challenge the notice or to question the amount claimed from him were sound then there woul<l be some force in the contention that s. 234 should be liberally construed in favour of the appel-lant. But is that assumption right? The answer to this question would depend upon the examination of three relevant provisions of the Regulation; they arc ss. 222(4), 93 and 226. We have already seen that s. 222(4) provides that any money recoverable by the Committee under s. 222(1) shall be recovered as if it were a tax levied by the Committee on the property and shall be chfLrged thereon. Section 93 provides for appeiLls fLgainst taxation. Section 93(1) lays down, inter alia, tlu1t au appeal against the assessment or levy of any tax under this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by the State Government in this behalf. The remaining five sub-sections of s. 93 prescribe t?e manner in which the appeal should be tried and dis-posed of. If the amount recoverable by respondent 2 from the appellant is made recoverable as if it were a tax levied by the Committee, then against the levy r96r of such a tax an appeal would be competent under D h s. 93(1). Mr. Chatterjee argues thats. 93(1) provides commit~;;" Ajmer for an appeal against the levy of a tax, and he draws v.' a distinction between the amount made recoverable State of Rajasthan as if it were a tax and the amount recoverable as a tax. His contention is that the amount which is Gajendragadkar J. recoverable under s. 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem-ed to be a tax an appeal would not be competent under s. 93(1). We are not impressed by this argument. If by the fiction introduced by s. 222(4) the amount in question is to be deemed as if it were a tax it is obvious that full effect must be given to this legal fic-tion; and in consequence, just as a result of the said section the recovery procedure prescribed by s. 234 becomes available to the Committee so would the right of making an appeal prescribed by s. 93(1) be available to the appellant. The consequence of the fiction inevitably is that the amount in question can be recovered as a tax and the right to challenge the levy of the tax accrues to the appellant. This posi-tion is made perfectly clear by s. 226. This section provides, inter alia, that where any order of a kind referred to in s. 222 is subject to appeal, and an appeal has been instituted against it, all proceedings to en-force such order shall be suspended pending the deci.

sion of the appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an offence. It is obvious that this section postu.

!ates that an order passed under s. 222 is appealable and it provides that if an appeal is made against such an order further proceedings would be stayed.

It is common ground that there is no other provision in the Regulation providing for an appeal against an order made under s. 222(1); and so inevitably we go back to s. 93 which provides for an appeal against the levy of a tax. It would be idle to contend that though s. 226 assumes that an appeal lies against an order made under s. 222(1) the Legislature has for.

gotten to provide for such an appeal. Therefore, in our opinion, there can be no doubt that reading r96i ss. 222, 93 and 226 togeLher the conclusion is inesca-

pable that an a.pp(•al lies under s. 93(1) against the v,a,•·c"" . demand made bv the Committee on the owner of the omnn ee, 4 1n1n property under " If . that be so, the main, if

v. ·· E. 22~(1).

State of llaJ""'""" not the sole argument, i.:rgcd in support of the liberal

constn:ction of s. 234 turns out to be fallacious.

Gajendragadka• J. ), ow, looking at s. 234 it is ol"ar that the proceed-

ings initiated before a Magistrate are no more than recovery proceedings. All questions which may legiti-mately be raised against, the validity of the notice served under s. 15:l or against the validity of the claim made by the Committee under s. 222 can an<l. ought to be raised in an appeal under s. 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raisPd in proceedings under s. 234. That is why the nature of the enquiry contemplated by s. 234 is very limited n,nd it primn, facie partakes of the character of a ministerial enquiry rather than judicial CJH]Uiry. In any event it is difficult lo hold thn,t the Magistrate who entertains the applicat,ion is an inferior criminal court. The claim made before him is for the recovery of a tnx and the order prayed for is for the recovery of the tax by distress and sale of the movable propert,y of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of the proceedings, whe~her it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so bectiuse he is designated in that behalf and so he must be treated as a persona desig-nata and not as a Magistrate functioning and exercis-ing his authority under the Code of Criminal Proce-dure. He cannot therefore be regarded as an inferior criminal court. That is the view takon by the High Court and we see no reason to differ from it. In the present appeal it is unnecessary to consider what would be the chn,racter of the proceedings before a competent Civil Court contemplated by the proviso. Prima facio such proceedings can be no more than execution proceedings.

Mr. Chatterjee also attempted to argue thltt the r96r proceeding8 under s. 234 taken 11.gainst the B·ppellant by respondent 2 Were incompetent. because a Jemand r nlat•gah I. has ·- not been made by respondent 2 on the appellant ~,011111tt i:e, ;mer v. in the ~anner prescribed by rule as required by s. 2:~4. state of Raja,than It dbes appear that rules have not been framed nuder the Regulation and so no form has been prescribed Gajrndwgadka. J. for makiug a demand under s. 222( 1 ). Therefore tho argument is that, unless the rules are framed and the form of notice is. prescribed for making a demand under s. 222(1) no demand can be sa.id to have been made in the manner ·prescribPd by rules A.nd so '1.n application cannot be made under s. 2:34. There are two obvious answers to this routcntion. The first answer is that if t.he revisional application made by the appellant before the High Court was incompaiont this question could not have been urgecl before the High Court because it was part of the merits of the case and so cannot be agitH.ted before us <'ither. As soon as it is held that the Ma.gist.rate was not an inferior criminal court the revisional applicaLion filed by the appellant before the High Court must be d0em· ed to be incompetent and rejected on that. preliminary ground alone. Besides, on the merits we src no sub-st11.nce in the argument. If the rnlcs are noC pl'Oscrihed thon all that can be sctid is thnt tlfor·o is no form pros-cribed for issuing a demand notice; tlmt dors not mean that the statutory power conferred on the Commit-ln<'

bys. 222(1) to make a demand is UJH'nforc<'able. As a result of the notice served by respondent 2 ag.tinst the appellant respondent 2 was entitled to make the necessary repairs aL its oqst.and malw a domH.nd for l'C· imbursomont of the said cost. That is drn pl:tin cffocl.

of the relevant prnvisions ·of the H,<'gulati•)n; and so, an amount which was claimable by vil'ttte of s. 2:22(1) does not cease to be claimable just b<'causo rules h:i.v0 not been framed prescribing tho form for making the said demand. In our opinion, thcrnfnrn, t.he ron(en.

tion •hat the applic>t~ion made under s. 23.J, was in.

competent must he rnjbctecl.

It now remains to consider some dccisio1rn to ,,-hi ch i961 our attention was drawn. In Grown through Munici-

pal Committee, Ajmer v. Amba Lal (1), the Judicial Cam.'.:~:;•hAJmer Commissioner Mr. Norman held that a Magistrate

v.' entertaining an application under s. 234 of the Regu-State of Rajasthan lation is an inferior criminal court. The only reason

-- given in support of this view appears to be that the Ga;endragadkar f. Magistrate before whom an application under the said

section is made is appointed under the Code of Crimi-nal Procedure, and so he is a criminal court although he is not dealing with crime. That is why it was held that he had jurisdiction to decide whether the condi-tions under which the Municipality can resort to the Magistrate are fulfilled. Having come to this conclu-sion the learned Judicial Commissioner held that a revision against the Magistrate's order was competent. In our opinion this decision does not correctly repre-sent the true legal position with regard to the charac-ter of the proceedings under s. 234 and the status of the Magistrate who entertains them.

In Re Dinbai Jijibhai Khambatta (') the Bombay High Court held that the order made by a Magistrate under s. 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) can be revised by the High Court under s. 435 of the Code of Criminal Procedure. This decision was based on the ground that the former part of s. 161 was purely judicial and it was held that the latter part of the said section though not clearly judicial should be deemed to par-take of the same character as the former part. Thus the decision turned upon the nature of the provisions contained in s. 161(2).

In V. B. D'Monte v. Bandra Borough Municipality(') a :Full Ben.ch of the Bombay High Court, while deal-ing with a corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely, s. 110, has held that in exercising its revisional jmis-diction under s. 110 the High Court is exercising a special jurisdiction ·conferred upon it by the said sec-tion and not the jurisdiction conferred under s. 435 of the Code of Criminal Procedure. According to this

(1) Ajmer-11£erwara Law Journal, Vol. V, p. 92.

(2) (1919) I.L.F, 43 Bom. 864, (3) I.L.R. 1950 Bom. 522. decision the matter coming before the High Court in 1961 such revision is of civil nature and so the revisional application would lie to the High Court on its civil side c Da•gahA. an d not on its , crnnma . . J s1 'd e. I t 1s . s1gm . 'fi cant t h at t h e 0111m1ttec, ;mer v. decision in the case of Emperor v. Demppa Ram. state of Rajasthan appa (1) which took a contrary view was not followed.

In Re Dalsukhram Hurgovandas (') the Bombay 1;ajn1drngadka• J. High Court had occasion to consider t.he nature of the proceedings contemplated by s. 86 of the Bombay District Municipal Act III of 1901. Under the said section a Magistrate is em powered to hear an appeal specified in the said section; and it was held that in hearing the said appeals the Magistrate is merely an appellate authority having jurisdiction to deal with questions of civil liability. He is therefore not an inferior criminal court and as such his orders are not subject to the revisional jurisdiction of the High Court under s. 435 of the Code of Criminal Procedure.

The Madhya Bharat High Court had occasion to consider a similar question under s. 153 of the Gwalior Manicipal Act ( 1993 Smt.) in Municipal Committee, Lashkar v. Shahabuddin ('). Under the said section an application can be made by the Municipality for re-covering the cost of the work from the person in default. It was held that the order passed in the said proceedings cannot be revised by the High Court under s. 435 because the order is an administrative order and that there was no doubt that the Magistrate was not an inferior criminal court.

In Mithan Musammat v. The Municipal Board of Agra & Anr., (') the Allahabad High Court has held that a Magistrate passing. an order under s. 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of s. 435 of the Code of Criminal Procedure. To the same effect is the decision of the Allahabad High Court in Madho Ram v. Rex (5).

We have referred to these decisions only to illus-trate that in dealing with similar provisions under the

(1) (19181 43 Born. 607. (2) (1907) 6 C1. L.J. 425, (3) A.LR. (39) t952 M.B. 48. (4) I.L.R. (1956) 2 All. 60.

(5) LL.R. (1950) All. 39>.

r96r municipal law different High Courts seem to have

taken the view that Magistrates entertaining recovery DMgahA. proceedings under the appropriate statutory provi-omnnttee, v. ;mer sions are not inforior criminal courts under the Code State of Rajasthan of Criminal Procedure. Though we have referred to

- these decisions we wish to make it clear that we Gajendrngadk"" J. should not be taken to have expressed any opinion

about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them.

The result is the appeal fails and is dismissed.

Appeal dismissed.

CHAND! PRASAD CHOKHANI

v.

April 24.

THE STATE OF BIHAR

(S. K. DAS, J. L. KAPUR, nir. HIDAYATULLAH, J. C. SHAH and T. L. VENKA'l'ARAMA AIYAR, JJ.) Supreme Court-Grant of Special Leave~ Practice-Appeal by Special Leave-Grant of special leave-·-Propriety, if can be ques-tioned at hearing of appeal.

Sales tax-Orders of Board of Revenue in revision-Orders of High Court-Special leave granted against orders of Board-Maintainability of appeal.

The appellant firm was assessed to sales tax under the pro-visions of the Bihar Sales Tax, 1944, for three periods commenc-ing from October l, 1947, and ending on March 31, 1950. Its claim for certain deductions was disallowed, and its applications in revision under s. 24 of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, r953 and April 30, 1954· Under s. 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, butthe applica-tions were dismissed by order dated August 30, 1954, on the ground that no questions of law arose. The appellant then moved the High Court for requiring the Board to stale a case on the said questions of law. The High Court dismissed the applica-tions in respect of the first two periods of assessment, but by order dated November 17, 1954, directed the Board ~o state a

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 162 of 1959.

Appeal by special leave from the judgment and order dated January 13, 1959, of the Rajasthan High Court in D. B. Criminal Revision No, 47 of 1957.