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R.K. Madhuryyajit Singh and ors. Vs. Ngangbam Chandradhwaja Singh and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantR.K. Madhuryyajit Singh and ors.
RespondentNgangbam Chandradhwaja Singh and anr.
Excerpt:
.....it distinctly appears that the government meant that he would be the district magistrate of the manipur central district. the knowledge of all, the government as well as the general public, he' has been functioning as a dlstriot magistrate of manipur central district since 14.11-1969. therefore,,the only valid oritioism that on be raised is that there is no government notification appointing shri s. aection contemplates th particular district magistrate within whose jurisdiction the subdivision falls who can be delegated the powers mentioned in section 13 (1). the district magistrate, manipur, referred to in the order dated 28-4.1959 is clearly not the district magistrate of manipur central district which office came into being only on 14.11.1969. therefore, the order dated 22-11.1969..........singh in oharge of the sub-division of imphal west, and, secondly, that even if it be assumed that shri vaish was legally holding the charge of district magistrate for that district on 22nd november 1969 he oould not have exercised the powers under sub-section (3) of section 13 of the code inasmuch as the chief commissioner's order dated 28th of april 1959 had delegated the power-of the state government under section 13 (1) of the code to 'the district magistrate, manipur' and not to 'the district magistrate of the manipur central district.'6. shri manisana singh, representing chandradhwajet singh, the respondent no. 1, and sbri n. ibotombi singh, the learned government advocate, appearing for the government of manipur, the respondent no. 2, submitted on the other hand that sinoe shri s......
Judgment:

R.S. Bindra, J.C.

1. This revision petition filed Under Section 435 read with Section 439 of the Criminal P.C. (hereinafter referred to as the Code) by R, K. Madhuryyajit Singh and four others challenges the final order dated 23-12.1969 passed by Shri b. Gourachandra Singh, Sub. divisional Magistrate, Imphal West, Under Section 145 of the Code in favour of the respondent ' No. 1 Ng. Chandradhwaja Singh. ' be principal question that falls for determination, in the case is whether Shri S. C. Vaish, District Magistrate, Manipur Central, Imphal, had the necessary legal authority on 22nd November 1969 to place Shri Th. Gourachandra Singh, Sub-deputy Collect r with powers of Magistrate 2nd Class, in charge of Imphal West division Under Section 13 of the Code.

2. The proceedings were initiated before Shri Gourachandra SiDgh by Ng. Chandia-dhwaja Singh, the respondent No. 1, who presented an application to the former Under Section 145, Criminal P.C. alleging that he was in lawful possession of a piece of land situate in Moiraogkhom Janmasthan for a long time, that on 10-12-1969 the five petitioners herein, in collusion with each other, trespassed over the land by show of force, having armed themselves with deadly weapons, such as, fire-arms, that a oomplaint lodged by him with the police station, Imphal, on ihe date of occur rence remained unheeded, probably for the reason that the petitioner No. 1 is a person of great influence, and that he was therefore forced to approach the Suh-divisional Magistrate for immediate intervention since there was an apprehension of the breach of the peace and bloodehed. Shri Gourachandra Singh pissed the preliminary order on the came date, viz., 12.12.19B9. and fixed 15.12.1969 for the parties concerned to put in written statements, affidavits and documents in support of their respective claims. Simultaneously, the Magistrate ordered the attachment of the land in dispute and sent the necessary writ to the police for execution. The record of the proceedings reveals that both the parties put in appearance on 15th Deoember 1969 when the first party, Chandradhwaja Singh, prayed for adjournment; as he was not ready with his written statement, while the second party, the petitioners herein, filed a written statement though unaccompanied by any affidavit or document. The Magistrate adjourned the case to 20th December, 1969 to enable the first party to put in his written statement and other documents. On 20th December, 1969 the second party being absent and the first Jr party having filed the written statement, be-sides four affidavits and one dooument, the Magistrate adjourned the hearing to 22cd of December, 1969. On this adjourned date as well, according to the. records, the Second party were absent and so they were proceeded against ex parte, and after hearing the arguments addressed by the counsel for Chandra, dhwaj Singh, the Magistrate fixed 23rd of December, 1969 for the final order. On the 1, latter date the order was announced declaring that the first party was in possession of the land in dispute on the date of the preliminary order. The members of the second party were consequently forbidden to disturb the possession of the first party, and the attachment of the land in dispute was lifted in favour of the latter.

3. It appears that the second party filed a revision petition against the preliminary order dated 12-12-1969.in the Court of the District Magistrate, but by the time that revision petition came up for hearing the Sub-divisional Magistrate had disposed of the cage finally with the consequence that the revision petition was dismissed as infruotuous. The second party thereafter filed a revision petition in the Court of the District Magistrate against the final order dated 23rd of December, 1969. That revision petition was dismissed by the Distriot Magistrate on 16th February, 1970. It is thereafter that the instant revision petition was filed in this Court.

4. Shri N. Benoy Singh, the learned Advocate representing the revision petitioner, raised a large number of points including the one attributing mala fides to Shri Goura-ychandra Singh, the Sub.divisional Magistrate who tried the case, but ultimately he rested the prayer for quashing the final order dated 23-12.1969 of that Magistrate on the ground that he had not been validly placed in charge of the subdivision of Imphal West and as such he had no authority to try the case or make the impugned order. On that account, it was submitted, the final order had no existence in the eye of law. In support of that contention he pointed out that by an Order No. 18 of 1950. dated 18th January, 1950. the entire Province of Manipur, as it was then called, was constituted as a single district for 'more efficient system of criminal and revenue administration' by the Chief Commissioner of Manipur, that per the same order the entire district was placed under the charge of a Deputy Commissioner who was ''responsible for the revenue and executive administration of the Province', and that the Deputy Commissioner was also appointed as a District Magistrate of that distriot.

The attention of this Court was also invited to an order dated 28th of April, 1969, by which the powers of the State Government under Sub-section (1) of S, 13 of the Code were delegated to the District Magistrate by the Chief Commissioner in terms of Sub-section (3) of that section. It is pursuant to this delegation that Shri S. C. Vaish is said to have placed Shri Gouraohandra Singh in charge of the aub.division of Imphal West by his order ''dated 22.11-1969 retrospectively with effeot from 12th of November, 1969 'until a new S. D. M. is appointed.' Another relevant fact bearing on the matter in controversy is that on 12th of November, 1969 the Chief Commissioner, Manipur, made an order, in super. Session of the aforementioned Order No. 18 of 1960, dated 18th January, 1950, dividing the entire territory of Manipur into five districts. 'with ft view to introducing a more efficient system of administration in the Union Territory of Manipur.' This order came into operation on 14th of November, 1969. The new districts were christened as Manipnr Central District, Manipur West District, Manipur North District, Manipur South District and Manipur Bast Distriot. Sarvashri K Lamphel Singh U. Ohakma, A. J. Tayeng and T. C. Tiaukham were respectively appointed as the District Magistrates of the four last mention, ed districts. No separate notification in respect of Shri S. C. Vaish, who was the District Magistrate of the entire Union Territory of Manipur before the new administrative set-up came into force on 14-11.1969, was made, although it distinctly appears that the Government meant that he would be the District Magistrate of the Manipur Central District. The partita' counsel were commonly agreed that Shri S. C. Vaish is at present discharging the functions both of Deputy Commissioner and the District Magistrate in respect of Manipur Central District.

5. In the context of the facts set out in the preceding paragraph Shri N. Benoy Singh urged, firstly, that since Shri S. C. Vaish had not been appointed a District Magistrate for the Manipur Central District after the new setup became operative on 11.11-1969 he had no authority on 22nd November, 1969 to place Shri Gouraohandra Singh in oharge of the sub-division of Imphal West, and, secondly, that even if it be assumed that Shri Vaish was legally holding the charge of District Magistrate for that district on 22nd November 1969 he oould not have exercised the powers under Sub-section (3) of Section 13 of the Code inasmuch as the Chief Commissioner's order dated 28th of April 1959 had delegated the power-of the State Government Under Section 13 (1) of the Code to 'the District Magistrate, Manipur' and not to 'the District Magistrate of the Manipur Central District.'

6. Shri Manisana Singh, representing ChandradhwaJEt Singh, the respondent No. 1, and Sbri N. Ibotombi Singh, the learned Government Advocate, appearing for the Government of Manipur, the respondent No. 2, submitted on the other hand that sinoe Shri S. C, Vaish had been holding the charge of District Magistrate over the entire Territory of Manipur until the new administrative setup came into force on 14-11.1969, and that since separate officers had been appointed as District Magistrates for the four out of the five newly created districts, therefore by the process of elimination Shri S. C. Vaish remained District Magistrate of the fifth district called Manipur Central District, and likewise by parity of reasoning he retained the powers delegated to him per Chief Commissioner's order dated 28th of April 1959 Under Section 13 of the code in respect of the Manipur Central District within which the subdivision of Iraphal West falls. In support of these sub. missions the learned Counsel placed reliance on the authorities in AIE 1931 Mad 697, Arumugha v. Emperor, and A.I.R. 1943 Sind 39, Nawab Khambhukhan v. Emperor.

7. To appreciate the rival contentions, it is necessary to refer to the relevant provisions of the code. Section 7 (1) thereof enacts that every State (excluding the presidency.towns) shall be a sessions division, or shall consist of sessions divisions, and every sessions division shall, for the purposes of this Oode, be a district or oonsist of districts. Sub-8. (2) of the same seotion provides that the State Govern, ment may alter the limits, or the number, of such division and districts, and the next sub-section states that the sessions division? and districts exiiting when the Oode comes in to force shall be sessions division and districts respeo. tively, unless and until they are so altered. Section 8 (1) authorises the Stats Government to divide any district outside the presidency towns into subdivision, or make any portion of any such district a sub-division or alter the limits of any subdivision. Seotion 10 (l) prescribes that in every district outside the presidency.towm the Slate Government shall appoint a Magistrate of the first olass, who ball be called the Diitriot Magistrate, Seotion 13 of the Oode it in the following terms:

(1) The State Government may place any Magistrate of the first or seoond class in oharge of a sub-division, and relieve him of the oharge as occasion required.

(2) Such Magistrates shall ba called Sub-Divisional Magistrates.

(3) The State Government may delegate its powers under this seotion to the District Magistrate.

8. After weighing the two points raised by Shri Bency Singh in the light of the data reproduced above, I have come to the conclusion that there is no substance in his contention that Shri Section 0. Vaiah was not the District Magistrate of the Manipur Central District on 22.11-1969, but there is force in his other submission that Shri S. C. Vaish lacked authority on that date to place Shri Goura-chandra Singh in oharge of the sub-division of Imphal West. Admittedly, Shri 8. 0, Vaish was a District Magistrate of the entire Territory of Manipur until 13-11.1969 and that be is working as District Magistrate of the Manipur Central District since 14-11.1969. The Territory was divided into five districts from the latter day and four officers mentioned above were put in charge of the four districts other than Manipur Central District. Shri S. C. Vaish was neither transferred from the Territory, nor was given any other assignment. Actually, t; the knowledge of all, the Government as well as the general public, he' has been functioning as a Dlstriot Magistrate of Manipur Central District Since 14.11-1969. Therefore,, the only valid oritioism that on be raised is that there is no Government notification appointing Shri S.C. Vaish as the District Magistrate of Manipur Central District with effect from 14.11.1969. However, on the basis of that technical laouna it would be too much to claim or contend that the Government did not intend or desire Shri S, C. Vaish to work as Dlstriot Magistrate of Manipur Central District. The situation was crystal clear at the moment the new set-up was introduced that four District Magistrates besides the one already in office, namely Shri Section 0. Vaish, would be required to run the administration on the criminal side, and since four new District Magistrates were appointed specifically, the one already working, it is manifest, was to continue as the District Magistrate of the district other than four assigned to the new appointees.

A Full Bench of Sind High Court held in the case of AIB 1943 Sind 39, while referring to the provisions of Sections 7 and 9 of the code, that there is no partioular viitue in a forma] notification, that the notification does not oonfer the powers, that Sections 7 and 9 actually confer the necessary powers, and that e Government notification merely declares on records the acts of Government. It was observed further that neither Section 7 nor Section 9 of the code requires formal publication of a notice issued under those provisions in the Government Gazette The facts of the case before the Sind High Court were that a post of District and Sessions Judge at Nawabshahvai created and one officer was appointed as t District and Sessions Judge of Nawabsbah, bu there was no notification establishing a Court of Session for Naitabshah as required bj Section 9 (1) of the Code. The High Court held that in spite of the absence of the notificatioi Under Section 9 (1), a Court of Session was valid established at Nawabshab. as was evident iron the creation of the Post of District and Sessions Judge at Nawabsbah and the appoint ment of a certain person as District anc Sessions Judge of that place. With respect, ] agree with the reasoning adopted and thi conclusion reached by the Sind High Com and so following the proposition enunciates by it. I hold that Shri 8.0. Vaish was the District Magistrate of Manipur Central Distric on 22.11 1969 when he issued the notification respecting Shri Gourachandra Singh Under Section 13 of the code.

9. Despite the finding just recorded, I cannot accept the contention of the counsel for the respondents that Shri S. C. Vaish had the necessary legal authority on 22.11.1969 to appoint Shri Gourachandra Singh as Sub-divisional Magistrate of Imphal West on the basis of Government notification dated 28th April 1959 issued under sub.s(3) of Section 13 of the code. That notification, it is obvious, delegated the powers to the District Magistrate, Manipur, when the entire Territory of Manipur constituted one district by virtue of Order No. 18 of 1950 dated 18th January 1950. By 22.11-1969 Manipur had been divided into as many as five districts and on that day Shri Section 0. Vaish was the District Magistrate not of Manipur, as he was upto 13th of November 1969, but of Manipur Central District. Therefore, he could not have exercised the powers delegated to the District Magistrate of Manipur by Order dated 28th of April 1959 on 22nd of November 1969.

Shri N. Ibotombi Singh urged during the course of arguments that since the notification had delegated the powers to the District Magistrate, Manipur, and since Manipur had been divided into five districts, all the five District Magistrates oould exercise powers on the principle of successorship. The argument is too naive to commend itself for acceptance. There is no warrant for the assumption that the five District Magistrates now In office are successors to the District Magistrate, Manipur, finding mention in the Order dated 23th of April 1959. The Order delegated the powers to the District Magistrate, Manipur. and since there is no District Magistrate at present in Manipur who answers that description, Shri Section 6. Vaish, who was in charge of Manipur Central District on 22.11-1969, could not have validly acted or assumed powers under the Order for the purpose of placing Shri Gouiaohandra Singh in charge of sub-division of Imphal West. Subjection (3) of Section 13 of the Code provides that the State Government may delegate its powers under the Section to 'The District Magistrate.' The article 'the' indicates that the sub.aection contemplates th particular District Magistrate within whose jurisdiction the subdivision falls who can be delegated the powers mentioned in Section 13 (1). The District Magistrate, Manipur, referred to in the Order dated 28-4.1959 is clearly not the District Magistrate of Manipur Central District which office came into being only on 14.11.1969. Therefore, the Order dated 22-11.1969 passed by Shri S. C. Vaish is bad in law since it lacks legal sanction. The corollary that follows is that the appointment of Shri Gourachandra Singh as the Sub.divisional Magistrate, Imphal West, on the basis of Order dated 22.11-1969 is altogether illegal. A passing reference may be made to Section 18 of General Clauses Act, 1897, which was cited by the learned Government Advocate to reinforce the argument of successor-ship. The Section provides that in any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations. I regret my inability to comprehend what applicability this Section has to the case in hand. What Central Act or Regulation we have to look to in the present case Certainly, the Order dated 23-4.1959 is neither a Central Act nor a Regulation. Nor the Chief Commissioner's order dated 13.11-1969 falls in that category. Therefore, the argument fails, it being puerile in nature.

10. It is relevant to mention that Lt. Governor of Manipur placed Shri Gourachandra Singh in charge of Sub-divisional Magistrate of Imphal West by a notification dated 12th January 1970 published in the Extra-ordinary Gazette dated January 21,1970. This noti-fication indicates that the Government felt some infirmity respecting exercise of powers by Shri Gouraohandra Singh as Sub-divisional Magistrate of Imphal West. That circumstance lends weight 'to the contention of Shri Benoy Singh that Shri Gauraobandra Singh had not been validly placed in charge of Imphal West sub-division by the order dated 22-11-1969 passed by Shri S. C. Vaish.

11. The order of Shri 8. C. Vaish also ap. pears to suffer from another vital legal defect. The order was passed on 22nd of Novimber 1969, but it was made effective retrospectively from 12th of November 1969. It is incom-prehensible how oould Shri Gouraohandra Singh be given powers of a Sub Divisional Magistrate retrospectively. The learned Counsel for the respondents were unable to support the validity of the order covering the period 12th of November to also of November 1969 though they urged that on account of that legal defect the order will not lose validity from 22nd of November 1969. This later submission has already been dealt with above,

12. If Gourachandra Singh was not legally holding the Office of Sub. divisional Magistrate during the period 12th of December to 23rd of December 1969, he could not have entertained the petition filed before him by Chandradhwaja Singh, nor passed the final order thereon on 23rd of December 1969. Therefore, the proceedings done by Shri Gourachandra Singh and the final order made by him have all to be quashed and the case remitted to the Sub.divisional Magistrate, Imphal West, for de novo proceedings right from the beginning. I order accordingly.


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