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PETITIONER: THE DARCAH COMMITTEE, AJMER

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 24/04/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS AIYYAR, T.L. VENKATARAMA

CITATION:  1962 AIR  574            1962 SCR  Supl. (2) 265  CITATOR INFO :  R          1966 SC 108  (3)

ACT: Municipality--Costs  incurred  for  repairs  realisable   by Committee as tax--Magistrate entertaining application-If  an inferior    criminal   court-Ajmer-Merwara    Municipalities Regulation, 1925 (Regulation VI of 1925), ss. 222(4), 234.

HEADNOTE: On the failure of the appellant to carry out the requisition by  the  Municipality  to execute  certain  repairs  to  its property the Municipality carried out the said repairs after giving due notice, the cost of which became recoverable from the  appellant as tax under S. 222(4) of the  Ajmer  Merwara Municipalities  Regulation.  The Municipality applied  under S.  234  Of the Regulation to the Additional  Tehsildar  and Magistrate,  II Class, Ajmer for the recovery of the  amount of cost incurred by them, and the magistrate passed an order calling  upon the appellant to pay the dues.   Against  this order   the   appellant  preferred   a   criminal   revision application  in  the  court  of  Sessions  judge  which  was rejected  as there was no ground to interfere  in  revision. The  appellant then moved the High Court in  its  revisional jurisdiction  wherein  the  respondents  raised  preliminary objection  that the criminal revision application  filed  by the  appellant  was  incompetent since  the  Magistrate  who entertained   respondent   No.   2   Municipal   Committee’s application under S. 234 was not an inferior criminal  court under S. 439 of the Criminal Procedure 266 Code,  the  said  objection  was  upheld  and  the  criminal revision application dismissed on that ground. The question was whether the Magistrate who entertained  the application  made before him by the Municipality  under   s. 234  of the Regulation was an inferior criminal court  under S.  439 Of the Code of Criminal Procedure, and also  whether an  application under S. 234 could be made unless the  rules were framed and the forms of the notice for making a  demand under S.  222 were prescribed. Held,  that  the Proceedings initiated before  a  Magistrate

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under S. 234 of the Ajmer Merwara Municipalities  Regulation were  merely  in the nature of recovery proceedings  and  no other  questions  could be raised in the  said  proceedings. The  nature of the enquiry contemplated by S. 234  was  very limited;  it  prima  facie partook of  the  character  of  a ministerial enquiry rather than judicial enquiry and at  the best could be treated as a proceeding of a civil nature  but not a criminal proceeding and the Magistrate who entertained the application was not an inferior criminal court. Whatever may be the character of the proceedings, whether it was  purely ministerial or judicial or  quasi-judicial,  the Magistrate  who  entertained the application  and  held  the enquiry did so because he was designated in that behalf  and so  he must be treated as a persona designate and not  as  a Magistrate  functioning and exercising his  authority  under the  Code of Criminal Procedure.  He could not therefore  be regarded as an inferior criminal court. Held,  further,  that if the rules were  not  prescribed  as required by S. 234 of the Regulation then all that could  be said  was  that there was no form prescribed for  issuing  a demand  notice, that did not mean that the  statutory  power conferred on the committee by s. 222(1) to make a demand was unenforceable and an amount which was claimable by virtue of S.  222(1) did not cease to be claimable just because  rules had not been framed prescribing the form for making the said demand. Crown through Municipal Committee, Ajmer v. Amba Lal, Ajmer- Merwara  Law  journal,  Vol.   V,  92,  Re  Dinbai  Jijibhai Khambatta,  (1919)  I.L.R.  43 Bom. 864, V.  B.  D’Monte  v. Bandra  Borough Municipality, I.L.R. 1950 Bom. 522,  Emperor v.  Devappa  Ramappa,  (1918) 43  Bom.  607,  Re  Dalsukhram Hurgovandas,   (1907)  6  Cr.   L.  J.  425  and   Municipal Committee,  Lashkay  v. Shahbuddin, A.I.R. 1952  M.  B.  48, referred to.

JUDGMENT: 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. 267 N.   C.  Chatterjee,  J.  L. Datta and C. P.  Lal,  for  the appellant. Mukat  Behari  Lal Bhargava and Naunit Lal,  for  respondent No.2. 1961.  April 24.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-On June 13,1950, the Municipal 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  condition.  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

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recoverable 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  rejected and  an order was passed calling upon the appellant  to  pay the dues in question by August 30, 1956.  Against 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.  Feeling aggrieved by the  dismissal of its 268 revision  application the appellant moved the High Court  of Judicature  for  Rajasthan in its  revisional  jurisdiction. Before the High Court, on behalf of respondent 1, the  State of  Rajasthan,  as  well  as  respondent  2,  a  preliminary objection was raised that the criminal revision  application filed by the appellant was incompetent since the  Magistrate who entertained respondent 2’s application made under s. 234 ",as 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 which 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  Regulation.   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 Committee  may by notice require the owner of the  building, wall or structure to remove the same forthwith 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  complies with  the  requisition  nothing  more  need  be  done.   If, however,  the  owner does not comply  with  the  requisition served  on  him  the Committee is  empowered  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  provision,  and  indeed as  its  consequence,  s.  222 empowers the Committee to recover the cost of the work done 269 under  s. 220.  Section 222(1) authorises the  Committee  to recover  the  cost of the work from the person  in  default. Sub-sections  (2)  and  (3) of s. 222  then  deal  with  the question as to which person should be held to be in default, the  owner  or the occupier; with that question we  are  not concerned in the present appeal.  Sub-section (4) of s.  222 provides  that where any money recoverable by the  Committee under this section is payable by the owner of the  property,

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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  recovered 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 Committee 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 Magistrate 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  tile  Magistrate was  moved by respondent 2. That in brief is the  scheme  of the material provisions of the Regulation. The main argument which Mt-.  Chatterjee, for the appellant, has  pressed before us is that in determining the nature  of the  proceedings  under  s. 234 and  the  character  of  the Magistrate who entertains an application made under the said section, it is important to 35 270 bear in mind that a person in the position of the  appellant has  no other opportunity to challenge the validity  of  the notice as well as the validity of the claim made against him by the Committee.  The argument is that it would be open  to the owner to contend that the notice issued under s. 153  is invalid  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 provides no  opportunity  to  the owner to raise those contentions except in proceedings under s.  234 the nature of the proceedings and the  character  of the  Magistrate  who  entertains them  should  be  liberally construed.  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 assumption 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 would be  some  force  in  the contention  that  s. 234 should be  liberally  construed  in favour of the appellant.  But is that assumption right?  The answer to this question would depend upon the examination of three  relevant provisions of the Regulation; they  are  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 charged  thereon. Section  93 provides for appeals against taxation.   Section 93(1)  lays  down, inter alia, that an  appeal  against  the assessment  or levy of any tax under this  Regulation  shall

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lie to the Deputy Commissioner or to such officer as may  be empowered  by  the  State Government in  this  behalf.   The remaining five subsections of s. 93 prescribe the manner  in which  the appeal should be tried and disposed of.   If  the amount  recoverable  by respondent 2 from the  appellant  is made recoverable as if it were 271 a tax levied by the Committee, then against the levy of such a  tax  an appeal would be competent under  s.  93(1).   Mr. Chatterjee  argues  that  s. 93(1) provides  for  an  appeal against  the  levy  of a tax, and  he  draws  a  distinction between the amount made recoverable as if it were a tax  and the amount recoverable as a tax.  His contention is that the amount  which is recoverable under s. 222(1) is no doubt  by fiction  deemed  to  be a tax but  against  an  amount  thus deem.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 fiction; 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  position  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  enforce such  order shall be suspended pending the decision  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 postulates 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 272 ss.  222, 93 and 226 together the conclusion is  inescapable that  an appeal lies under s. 93(1) against the demand  made by  the  Committee  on the owner of the  property  under  s. 222(1).  If that be so, the main, if not the sole  argument, urged in support of the liberal construction of s. 234 turns out to be fallacious. ow, looking at s. 234 it is clear that the  proceedings 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. 153 or against the validity of the claim  made  by the Committee under s. 222 can and 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 raised in proceedings under s. 234.  That is    why   the   nature   of   the    enquiry contemplated by s.  234  is very limited and it prima  facie partakes  of the character ’of a ministerial enquiry  rather than judicial enquiry.  In any event it is difficult to hold that  the  Magistrate who entertains the application  is  an

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inferior  criminal court.  The claim made before him is  for the  recovery of a tax and the order prayed for is  for  the recovery  of  the tax by distress and sale  of  the  movable property 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, whether it is purely ministerial or judicial or quasi-judicial,   the   Magistrate   who   entertains    the application  and  holds the enquiry does so  because  he  is designated  in  that behalf and so he must be treated  as  a persona  designata and not as a Magistrate  functioning  and exercising  his authority under the Code of Criminal  Proce- dure.   He  cannot  therefore be  regarded  as  an  inferior criminal  court.  That is the view taken 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 character of the proceedings before a competent Civil  Court contemplated  by the proviso.  Prima facie such  proceedings can be no more than execution proceedings.                             273 Mr. Chatterjee also attempted to argue that the  proceedings under  s.  234 taken against the appellant by  respondent  2 were  incompetent  because a demand, has not  been  made  by respondent  2 on the appellant in the manner  prescribed  by rule as required by s. 234.  It does appear that rules  have not been framed under the Regulation and so no form has been prescribed  for making a demand under s. 222(1).   Therefore the  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 said to have been made in the manner prescribed  by  rules and so an application cannot  be  made under  s.  234.   There  are two  obvious  answers  to  this contention.   The  first answer is that  if  the  revisional application made by the appellant before the High Court  was incompetent  this question could not have been urged  before the High Court because it was part of the merits of the case and  so cannot be agitated before us either.  As soon as  it is  held  that the Magistrate was not an  inferior  criminal court  the  revisional application filed  by  the  appellant before  the High Court must be deemed to be incompetent  and rejected on that preliminary ground alone.  Besides, on  the merits  we see no substance in the argument.  If  the  rules are  not prescribed then all that can be said is that  there is no  form prescribed for issuing a demand  notice;  that does  not  mean. that the statutory power conferred  on  the Committee  by s. 222(1) to make a demand  is  unenforceable. As a result of the notice served by respondent 2 against the appellant  respondent 2 was entitled to make  the  necessary repairs  at its cost and make a demand for reimbursement  of the  said  cost.  That is the plain effect of  the  relevant provisions  of the Regulation; and so, an amount  which  was claimable  by  virtue  of s. 222(1) does  not  cease  to  be claimable   just   because  rules  have  not   been   framed prescribing  the  form for making the said demand.   In  our opinion, therefore, the contention that the application made under s. 234 was incompetent must be rejected. It now remains to consider some decisions to which 274 our  attention  was  drawn.   In  Crown  through   Municipal Committee, Ajmer v. Amba Lal (1), the Judicial  Commissioner Mr.   Norman   held  that  a  Magistrate   entertaining   an application  under s. 234 of the Regulation is  an  inferior criminal  court.  The only reason given in sup-port of  this view  appears  to  be that the  Magistrate  before  whom  an application  under  the said section is  made  is  appointed

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under  the  Code  of  Criminal 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  conditions under which  the  Municipality  can resort to the Magistrate are fulfilled.  Having come to this conclusion  the  learned Judicial Commissioner held  that  a revision  against the Magistrate’s order was competent.   In our  opinion this decision does not correctly represent  the true  legal  position with regard to the  character  of  the proceedings  under s. 234 and the status of  the  Magistrate who entertains them. In  Re Dinbai Jijibhai Khambatta (2) 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 partake  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(1)  a  Full Bench  of  the  Bombay  High Court,  while  dealing  with  a corresponding provision of the Bombay Municipal Boroughs Act XVIII  of 1925, namely, s. 110, has held that in  exercising its  revisional jurisdiction under s. 110 the High Court  is exercising  a special jurisdiction conferred upon it by  the said section and not the jurisdiction conferred under s. 435 of the Code of Criminal Procedure.  According to this (1)  Ajmer-Merwara Law journal, Vol.  V, P. 92. (2) (1919) I.L.R. 43 Bom. 864. (3) I.L.R. 1950 Bom. 522. 275 decision  the  matter coming before the High Court  in  such revision   is  of  civil  nature  and  so   the   revisional application  would lie to the High Court on its  civil  side and  not on its criminal side.  It is significant  that  the decision in the case of Emperor v. Devappa Ramappa (1) which took a contrary view was not followed. In  Re Dalsukhram Hurgovandas (2) the Bombay High Court  had occasion   to  consider  the  nature  of   the   proceedings contemplated  by s. 86 of the Bombay District Municipal  Act III  of  1901.   Under  the said  section  a  Magistrate  is empowered  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 Municipal  Act (1993  Smt.) in Municipal Committee, Lashkar v.  Shahabuddin (3).   Under the said section an application can be made  by the  Municipality for recovering 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., (4)  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

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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 (1). We have referred to these decisions only to illustrate  that in dealing with similar provisions under the (1)  (1918) 43 Bom. 607. (3)  A.I.R. (39) 1952 M.B. 48. (2)  (1907) 6 Cr.  L.J. 425. (4)  I.L.R. (1956) 2 All. 60. (5) I.L.R. (1950) All. 392. 276 municipal  law different High Courts seem to have taken  the view  that  Magistrates  entertaining  recovery  proceedings under the appropriate statutory provisions are not  inferior criminal  courts  under  the Code    of  Criminal Procedure. Though  we have referred to these decisions we wish to  make it clear that we  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.