CHAIRMAN Vs. MTRAMNANDI KUER

JUDGEMENT

(1.) This is an application in revision against an order of a Magistrate of the second class at Bihar. The judgment of the Magistrate begins: The accused have been prosecuted under Section 198, Municipal Act, as they did not comply with the notice served upon them to remove the encroachment, a platform) within eight days of the service of the notice. It concludes, after the finding that the encroachment was "very doubtful," with the words: Accordingly no action under Section 198, Municipal Act, can possibly be taken when the encroachment has not been proved. I therefore do not find any of the accused guilty and acquit all of them under Section 245 (1), Criminal P.C.

(2.) The application in revision was filed direct and admitted. It has been contended on behalf of the opposite party that it should not be entertained because no application was made to any lower Court of revision. In support of this contention Bipin Bihari V/s. Emperor A.I.R. 1918 Pat. 588 has been cited.

(3.) In Chokat Ahir V/s. Suraj Singh A.I.R. 1940 Pat. 299. I held that though it is not usual to entertain applications in revision direct, they must, after they have been admitted, be disposed of on the merits. It was not necessary for me on that occasion to give any authorities for that view because the point was not very seriously raised before me. But now that it has been raised, it is sufficient to refer to Abdul Matlab V/s. Nanda Lal A.I.R. 1923 Cal. 674 and Emperor V/s. Bisheshwar Prasad cited by Mr. Sarjoo Prasad on behalf of the applicant, the chairman of the Bihar Municipality. The ruling in Bipin Bihari V/s. Emperor A.I.R. 1918 Pat. 588 is based on Calcutta and Allahabad decisions and the cases now referred to show that in those Courts also a distinction is made in the treatment of such applications before and after admission. If the matter dealt with by the Magistrate was, as he says, one under Section 198, Bihar and Orissa Municipal Act, it seems that the definition in Section 3(12) of the Act was completely overlooked by everybody concerned until the argument was well advanced in this Court. Section 198 provides that "the Magistrate" may on the application of the Commissioners order that the obstruction, encroachment or projection be removed, etc. Now this expression "the Magistrate" is defined in Section 3(12) of the Act as including. the District Magistrate, the Magistrate in charge of the sub-division in which the municipality is situated, and any Magistrate subordinate to the District Magistrate to whom the District Magistrate has made over any of his duties under this Act.