K.B. Srivastava, J. - (1.) This reference under Section 438 of the Code of Criminal Procedure raises an interesting question of law which does not appear to be covered by any authority of this Court.
(2.) The facts giving rise to this reference, may now be stated, in brief. There is a strip of land, 71 feet x32 feet, which is enclosed by iron pipes and a major portion of which is covered by corrugated asbestos sheets and which is situate within the premises of the Charbagh Station of the North Eastern Railway at Lucknow. This land is always given on a contract by the Railway administration to contractors for use as a cycle and scooter stand, on such terms and conditions, including payment of premium and rent, as may be settled between the Railway administration and the contractor, after acceptance of tender. One Sardar Satpal Singh was given the contract of the stand for the period December 1, 1967 to November 30, 1969, though the agreement was reduced into writing on March 20, 1968. Before expiry of the period of the contract, the Railway administration invited tenders on November 26, 1969 for the settlement of a new contract which was to be effective from December 1, 1969. The tender of one Gorakh Nath Upadhya was accepted on January 29, 1970 for a period of three years at a monthly payment of Rs. 2,001/- . The contract was to come into force with effect from March 1, 1970 and in the meantime the previous contract of Sardar Satpal Singh had been extended upto February 28, 1970. A notice dated February 25, 1970 was accordingly issued to Satpal Singh to vacate the stand by February 28. Satpal Singh, however, instituted a suit for perpetual injunction in the Court of Munsif South, Lucknow for restraining the Railway Administration from preventing him from running and maintaining the cycle stand. The Munsif granted an interim injunction which was, however, vacated on April 20, 1972. Satpal Singh filed an appeal on April 22, 1977 against the order vacating the interim injunction. He also succeeded in obtaining another interim injunction from the appellate court on April 22, 1972. His appeal was dismissed on September 21, 1972. He then instituted a writ petition in this Court on September 23, 1972 which was admitted and an interim order was also passed restraining the Railway Administration from evicting him on the condition that he deposited Rs. 60,000/- within a month and continued to deposit a sum of Rs. 2,000/- every month thereafter. The Railway Administration filed an application on October 5, 1972 for the vacation of this interim order. This matter came up before this Court on October 23, 1972 and on that date the learned counsel for Satpal Singh made a statement that he did not press the stay application which was accordingly dismissed on that date and the earlier stay order was vacated. The Station Superintendent, Charbagh then put the cycle stand under lock and key. This lock was, however, found broken next day on October 24, 1972. On that very date, that is to say, on October 24, Ram Bilas, Pandey instituted a writ petition in this court "alleging that after the vacation of the. stand by the previous contractor Satpal Singh, he had entered into lawful possession with the consent and permission of the Railway Administration on the clear and express assurance that a formal agreement would be executed in due course. This writ petition was admitted and the eviction of Ram Bilas Pandey was stayed. However, the stay order specifically mentioned that no fetters were placed upon the power a the Prescribed Authority in issuing a notice and passing a final order of eviction under Public Premises (Eviction of Unauthorized Occupant) Act, 1971. The interim order was subsequently vacated by this Court on November 10, 1972. The Railway Administration then presented an application under Section 138, Indian Railways Act before the Special Railway Magistrate, Lucknow on November 10, 1972 for the eviction of Ram Bilas Pandey and the Special Railway Magistrate passed an order on the same date directing the Station Officer, G.R.P., Lucknow to evict Ram Bilas Pandey and deliver possession to the Railway Administration. Ram Bilas Pandey instituted a revision (Criminal Revision 177 of 1972) before the Sessions Judge against this order on November 13, 1972 and eviction was stayed during the pendency of the revision. He asserted that he was in lawful possession with consent and permission of the Railway administration on a specific assurance that a formal agreement would be executed in due course. The Railway Administration, however, controverted this fact and alleged that no such consent or permission or assurance was given and that Ram Pandey was a rank trespasser. The revision came up for decision before the Third Temporary a Civil and Sessions Judge who made this reference on January 19, 1973 recommending the quashing of the order passed by the Special Railway Magistrate on the following grounds, namely, (1) that Ram Bilas Pandey was not a Railway servant and, therefore, Section 138 had no application the Special Railway Magistrate had no jurisdiction to act under it, because the mandatory notice mentioned in the section had not been issued to Ram Bilas Pandey was not even that of a Railway contractor and that his real status was that of a rank trespasser and, therefore the facts attracted the application of the public premises (Eviction of Unauthorised Occupants) Act, 1971 and not of the Indian Railways Act.
(3.) At the time of the hearing of this reference, a preliminary objection was raised by the learned counsel for the Railway Administration that the impugned order passed by the Special Railway Magistrate was a purely administrative or executive order and not an order passed in "any proceeding before any inferior criminal Court" and, therefore, no revision lay under Section 435 of the Code of Criminal Procedure, to the court of Session and consequently the Sessions Judge had no power to make a reference to this Court under Section 438 and this Court is equally not competent to pass any order in exercise of its revisional power under Section 439 of the Code. This argument of his has several facts, and I now proceed to deal with them.;