TARACHAND Vs. KRISHNA GOPAL
LAWS(RAJ)-1967-10-2
HIGH COURT OF RAJASTHAN
Decided on October 09,1967

TARACHAND Appellant
VERSUS
KRISHNA GOPAL Respondents

JUDGEMENT

BHANDARI, J. - (1.) THIS case has been placed before us under the following circumstances.
(2.) KRISHNA Gopal Vyas, opposite party No. 1 filed an application under sec. 17 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (herein-after called the Act) in the court of the City Magistrate, Kotah, that he was a tenant of Moolchand son of Beharilal, opposite party No. 2, and that two rooms belonging to Beharilal in the house, in which he resided as tenant of Beharilal, had fallen vacant and as he needed more accommodation, he be given possession of the said rooms after determining the terms of the tenancy with regard thereto. This appli-cation was contested by Moolchand on several grounds one of which was that the rooms were required by his brother Tarachand and his sister Ramkanti Bai who are appellants in this Court. The city Magistrate granted the application of KRISHNA Gopal on the 24th June, 1963. Tarachand and Ramkanti Bai filed an appeal to the District Magistrate, which was dismissed on the 21st November, 1963. They filed a civil revision application in this Court for setting aside the aforesaid orders of the District Magistrate and the City Magistrate. On the 15th March, 1965, Jagat Narayan J. held that no revision was maintainable under sec. 115 C. P. C. The applicants then converted their application into a criminal revision application which was heard by a learned single Judge and in his view the following question which arose in the case called for decision by a larger bench: "whether a Magistrate exercising powers under sec. 17 of the Act and the District Magistrate exercising powers under sec. 22 (3) of the Act are inferior criminal courts as envisaged by sec. 435 Cr. P. C. and thus their orders are open to revision by the High Court or not?" We have to examine whether this Court in exercise of the powers conferred under secs. 435 and 439 Cr. P. C. can grant relief to the applicants. Under sec. 435, Cr. P. C. this Court can call for and examine the record of any proceeding before any inferior criminal court. Under sec. 439 Cr. P. C. this Court may pass orders as provided therein in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. We have, therefore, to examine in this case whether the City Magistrate of Kotah and the District Magistrate, Kotah, while exercising powers under sec. 17 and sec. 22 (3) of the Act respectively in this case were criminal courts and their orders can be revised under sec. 435 and/or sec. 439 Cr. P. C. The nature of the exercise of jurisdiction by the Magistrate can be gathered from sec. 17 of the Act and of the District Magistrate from sec. 22 (3) of the Act. These sections run as follows: - Sec. 17 - Power of Magistrate to require premises to be let.- (1) Wherever any premises become vacant either by the landlord ceasing to occupy the same or by the termination of a tenancy or by the release of the premises from requisition or otherwise, the Magistrate may, on the application of any person standing in need of such premises for his occupation and use or otherwise, if satisfied of actual necessity, serve on the landlord a notice - (i) informing him that the premises are required by the person named in the notice for the purpose stated therein, and (ii) requiring him and every other person claiming under him to appear before the Magistrate on or before a date specified in the notice and show cause against the letting of the premises to the said person. (iii) No landlord to whom a notice under sub-sec. (1) is issued, shall, after the receipt thereof, lease out or otherwise dispose of the premises to or in favour of any person other than the one named in the notice unless and until the Magistrate withdraws the notice, and every such lease or disposal shall be null and void. (3) Any landlord objecting to the notice on any of grounds set forth in clauses (h) and (k) of sec. 13 may do so by application in writing made in that behalf to the Magistrate and the provisions of that section shall apply so far as they may be made applicable. (4) After such inquiry into an application under sub-sec. (3) as may be necessary in the circumstances of each case the Magistrate shall either withdraw the notice or shall proceed to determine the terms of the tenancy in accordance with the provisions of this Act. (5) If the person named in the notice under sub-sec. (1) agrees in writing to abide by the terms of the tenancy determined under sub-sec. (4) and satisfies the Magistrate in that behalf by means of security or otherwise, the Magistrate shall order the landlord to deliver possession of the premises forthwith to the said person and shall, if necessary, on his application place him in possession of such premises. " x x x x x x Sec. 22 (3) - 'any person aggrieved by an order of the Magistrate may, within fifteen days from the date of such order, appeal therefrom to the District Magistrate or such authority as the State Government may from time to time appoint in that behalf. " On a careful, examination of sec. 17, it is clear that the jurisdiction exercised by the Magistrate is essentially of a civil nature. He is to determine the claim of a tenant making the application before him to obtain possession of some immovable property after serving notice to the landlord and hearing his objections and then pass an order either of withdrawing the notice or proceed to determine the terms of the tenancy in accordance with the provisions of the Act. If the applicant then agrees in writing to abide by the terms of the tenancy so determined, the Magistrate may pass orders to place him in possession of the premises. The same is true about the nature of jurisdiction exercised by the District Magistrate when he is deciding an appeal, The contention on behalf of the applicants, however, is that it is not the nature of the jurisdiction exercised by a court which should determine whether it is a criminal court, or not but the only test for determining whether the court is a criminal court or not is whether it is constituted under the provisions of the Code of Criminal Procedure. It is urged that in the instant case the court of the City Magistrate was constituted under the provisions of the Criminal Procedure Code, and, therefore, it was a criminal court whatever the nature of the jurisdiction it might be exercising. In this connection reliance is placed on the following observations of their Lordships of the Supreme Court in Ram Chandra vs. State of U. P. (1): "when a special or local law provides for an adjudication to be made by a constituted court that is, a court not created by a special or local law but to an existing court it in fact enlarges the ordinary jurisdiction of such a Court. Thus where a special or a local statute refers to a constituted Court as a court and does not refer to the presiding officer of that Court the reference cannot be said to be persona designata. This question is well settled. It is, therefore, unnecessary to say anything more on this part of the case except that cases dealing with the point have been well summarised in the recent decision in Chatur Mohan vs. Ram Behari (A. IR. 1961 Allahabad 562 (FB))" Reliance is also placed on B. Krishna vs. D. Chenchi Reddy (2 ). Learned counsel for Krishna Gopal, opposite party No. 1 however, urges that the Magistrate in sec. 17 is persona designata. So also the District Magistrate in sec. 22 (3) of the Act. There is no doubt that the courts of City Magistrate Kotah and District Magistrate Kotah were created under the Criminal Procedure Code and they were criminal courts. Now power may be conferred on the presiding officer of such a criminal court by a special or local statute. If this power is of executive or administrative character, such officer will not be exercising such power in judicial capacity as presiding officer of the court and the orders passed by such officer will not be orders of the criminal court but orders passed by an officer in his executive or admini-strative capacity which cannot be interfered with, under secs. 435 and 439 Cr. P. C. by this Court as this Court can revise only the orders of a court and not executive or administrative orders. It is, however, contended by learned counsel for the applicants that the Magistrate in this case was not exercising any executive power but was exercising judicial power and even though such Magistrate exercised civil jurisdiction, he would still remain a criminal court for the purpose of sec. 435 and sec. 439 Cr. P. C. Reliance is placed on B. Krishna V. D. Chenchi Reddy (supra) in which it has been observed that in construing sec. 435 Cr. P. C. emphasis should be laid on the fact that the proceedings were before the inferior criminal court and the character of the proceedings should not be taken into consideration. In this connection it is also urged that no importance should be attached to the use of the word "magistrate" in sec. 17 as more often than not expressions "magistrate" and "court of Magistrate" are synonymous. Even accepting that the use of the word "magistrate" in sec. 17 signifies 'court of Magistrate' we may say, with great respect that the view that the character of proceedings is not material is not in consonance with the observations of their Lordships of the Supreme Court in Durgah Committee vs. State of Rajasthan (3 ). That was a case under the Ajmer Merwara Municipalities Regulation (6 of 1925) in which certain repairs were undertaken by the Municipal committee, Ajmer, and the extra charges were sought to be recovered from the owner of the building Durgah Committee under Reg. 222 (4) of the said Regulation by making an application before the Magistrate. An order was passed calling upon the Durgah Committee Ajmer to pay the dues. A revision application was filed before the court of the Sessions Judge, Ajmer, but it was dismissed. Then a revision application was filed in this Court. This Court upheld the objection raised by the Municipal Committee that the criminal revision application was incompetent since the Magistrate who entertained the respondent's application made under Reg. 234 was not an inferior criminal court under sec. 439 Cr. P. C. The Supreme Court dismissed the appeal filed by the Durgah Committee against the order of the High Court, and observed as follows: "in any event, it is difficult to hold that the Magistrate who entertains the application is an 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 proceeding 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 Procedure. He cannot therefore be regarded as an inferior criminal court. " The Supreme Court also referred to some of the important cases on this subject one of which was Crown vs. Ambalal (4) in which it has been held that the Magistrate entertaining an application under R. 234 of the said Regulation was a criminal court although he was not dealing with crime as he was appointed under the Code of Criminal Procedure. Their Lordships observed that: "in our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under sec. 234 and the status of the Magistrate who entertains them. " This case is sought to be distinguished by learned counsel for the applicants on the ground that the Magistrate in that case was exercising executive powers and not judicial powers. But the observations of their Lordships of the Supreme Court do not leave any scope for such distinction, as it has been clearly pointed out by their Lordships that whatever maybe the character of the proceedings, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertained the application and held the inquiry did so because he was 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 Procedure. A Division Bench of this Court in Keshave Dev vs. Radhey Shyam (5) had occasion to consider whether a Munsiff or a Civil Judge hearing election petitions under the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, functioned as a persona designata or as a civil court, and held that the Munsiff while hearing the election petition may have all the trappings of a court but he cannot be deemed to function as an ordinary civil court Relying on an earlier decision of this Court in Keshri Prasad vs. Bodhraj (6) and the cases referred to therein and A. Narasimha Ayyangar vs. K. Ramayya Chettiar (7) and Kedar Nath vs. S. N. Misra (8), the division bench took the view that the Munsiff or the Civil Judge hearing the election petition was a persona designata. In Parasmal vs. Devilal (9), Bhargava J. took the view that the District Magistrate acting under sec. 23 (5) of the Act exercised power as a special officer and this power was not given to the District Magistrate in his capacity of the court and as such the District Magistrate was not an inferior criminal court and any order passed by him in that capacity was not revisable by this Court under sec. 439 of the Code. It has been urged that a Magistrate functioning and exercising powers even under the Code of Criminal Procedure is not always dealing with criminal matters. Reliance is placed in this connection on a Full Bench decision of the Bombay High Court in Jamshi Govindji Sanghadia vs. Emperor (lo) where it has been observed that there are some provisions in the Criminal Procedure Code itself which are not concerned or not necessarily concerned with the commission or the prevention of an offence for instance secs. 488, 144 and 133 Cr. P. C. but still the Magistrate was a criminal court. It is contended that to hold a court as a criminal court it is not necessary that it should exercise jurisdiction in criminal matters only. The preamble of the Code of Criminal Procedure clearly says that it was enacted for the purpose of consolidating and amending the law relating to Criminal Procedure which provided for machinery for the punishment of and prevention of crimes as embodied in sec. 133 and sec. 144. These two sections provide for speedy remedy in cases in which danger to public peace is apprehended on account of any act committed by a person or a party which act even if not strictly of criminal nature, was of quasi-criminal nature. Sec. 488 Cr. P. C. provides for passing of orders for maintenance of wife and children who have been neglected or refused to be maintained. The object may be to prevent vagrancy or to afford speedy relief to wife and children who have been neglected or refused to be maintained. This jurisdiction is not altogether foreign to the criminal jurisdiction. Neglect of a child may well mean a criminal act. A Magistrate exercising jurisdiction under these provisions is, in our humble opinion, exercising jurisdiction under a criminal matter. Thus a Magistrate acting under the provisions of Criminal Procedure Code is always a criminal court. No doubt as pointed out by their Lordships of the Supreme Court in Ramchandra vs. State of U. P. (supra), when a special or local law provides for an adjudication to be made by a constituted court, that is, by a court not created by a special or local law but to an existing court, it in fact enlarges the ordinary jurisdiction of such a court and such courts are governed by ordinary rules of procedure applicable to them. But the case may present some difficulty when the new jurisdiction conferred is entirely foreign to its ordinary jurisdiction. In such cases two aspects of the matter may present themselves for consideration. The first is where the new jurisdiction is conferred as persona designata on the presiding officer of the court, and in such cases the ordinary procedure of the court is not applicable. The second is where the law conferred any special jurisdiction on an existing court indicating at the same time expressly or impliedly that ordinary rules of procedure governing the existing court would not govern the cases coming under the special jurisdiction conferred. In the first case there is obviously no enlargement of the jurisdiction of the court as there is conferment of new jurisdiction not on the court but on the presiding officer of the court as persona designate The definition given by Schwabe C. J. in Parthasaradhi Naidu vs. Kuteswara Rao (11) of persona designata is "persons selected to act in their private capacity and not in their capacity as Judges" was approved by their Lordships of the Supreme Court in Central Talkies Ltd. vs. Dwarka Prasad (12 ). As observed by Desai C. J. in Chatur Mohan vs. Ram Behari (13), "it is always open to the Legislature to confer a special jurisdiction upon an authority presiding over a court and when it does so it may have to refer to the fact of his presiding over the court in order to describe or identify him. In such a case the reference to his presiding over the court is only accidental and does not mean that he has to exercise jurisdiction as a court. " In all such cases there is no enlargement of the jurisdiction of the existing court. In the second case no doubt special jurisdiction is conferred not on the presiding officer of the court but on a court but if the law conferring such special jurisdiction has enacted that the ordinary rule governing the procedure in that court would not be followed; there is no reason to go contrary to what is said in that law. Sec. 1 (2) Cr. P. C. clearly lay down that nothing contained in the Code of Criminal Procedure shall affect any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. The three Privy Council cases. Theberge vs. Laudry (14), Strickland vs. Grima (15) and Senanayake vs. Navaratne (16) show that leave to appeal to the Privy Council was refused when a special kind of jurisdiction was created by enactments which indicated that the judgment of an election tribunal was to be treated as conclusive and final and not subject to appeal. Learned counsel for the applicants has, however, laid considerable emphasis on the observations in Central Talkies Ltd. vs. Dwarka Prasad (supra ). In that case the question was whether the permission granted by an Additional Distric Magistrate (Rural Area) to a landlord to file a suit for ejectment of a tenant under sec. 3 of the United Provinces (Temporary) Control of Rent and Eviction Act 1946 called in that judgment as Eviction Act was valid or not. Sec. 3 as it stood at the relevant date read as follows: - No suit shall, without the permission of the District Magistrate be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds. . . . . . "district Magistrate" was defined by sec. 2 (d) of the Act as follows: "district Magistrate' includes an officer authorised by the District Magistrate to perform any of his functions under this Act. " The argument addressed was that the District Magistrate mentioned in sec. 3 was a persona designata and that either he or an officer authorised by him to perform his functions could grant permission and that no Additional District Magistrate was competent to grant such permission. Their Lordships referred to sec. 10 of the Code of Criminal Procedure as it stood at the relevant time sub-sec. (2) of which ran as follows: "the Provincial Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force as the Provincial Government may direct. " and held that the Additional District Magistrate appointed by a notification issued by the Provincial Government could deal with an application under the Act for permission to file a civil suit without special authorisation from the District Magistrate. Their Lordships over-ruled the argument that special jurisdiction created by the Eviction Act was not affected by sec. 10 (2) of the Code because the provisions of that sub-section widened the powers of the District Magistrate. It is in this connection that an observation was made in this case that the argument that the District Magistrate was a persona designata could not be accepted.
(3.) THESE observations, in our humble opinion, cannot be construed that the District Magistrate in that case was not exercising a special power or special jurisdiction. A special power or special jurisdiction may be conferred by any law or any superior authority on any person by describing him as the presiding officer of a court and if there are several courts of equal status on all such officers. . After careful scrutiny, we find that the proceedings under sec. 17 in this case are essentially of a civil nature and that a separate right of appeal has been provided against the order of the City Magistrate or a District Magistrate. We also find that separate procedure has been laid down for dealing with the matter arising under sec. 17. We also find that it is the Magistrate on whom is conferred the power to take action under sec. 17 and not on the court of Magistrate. All these considerations persuade us to take the view that the City Magistrate Kotah acted as a persona designata and not as a criminal court. Even if he acted as a court, we are of the view that he exercised a special jurisdiction under sec. 17 of the Act which was to be treated as final unless reversed or modified under sec. 22 (3) by the District Magistrate. The same considerations with added force apply to an order passed by the District Magistrate under sec. 22 (3) of the Act. The result is that this Court has no power to interfere in revision either under sec. 435 or sec. 439 Cr. P. C. .;


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