1. The non-applicant had placed some building material (Malva) upon the ground level of a street and the Municipal Committee, Lashkar after issuing a notice to the non-applicant summarily removed the moveable encroachment. The Municipal Committee applied to the Magistrate for recovering expenses from the non-applicant. The Magistrate dismissed this application and a revision against this order was dismissed by the learned District and Sessions Judge. The Municipal Committee has therefore come up in revision to this Court.
2. Mr. Swamisaran, learned Counsel for the non-applicant, has raised a preliminary objection contending that the order of the Magistrate is not liable to revision under Section 435 of the Indian Criminal Procedure Code.
3. I have no doubt that the power which the Magistrate exercises in respect of any prosecution, under Section 159 or Chapter 9 of Gwalior Municipal Act, is a judicial power and any order made by him in these prosecutions will be the order of an inferior Criminal Court liable to revision by this Court, I am not sure however whether the same can be said of an order passed by him on an application for recovering the cost of the work from the person in default under Section 153 of the Gwalior Municipal Act or as an arrear of tax or of assessment under Section 78. The power which a Magistrate exercises under these sections is ordinarily of a ministerial nature and in certain cases he has also to deal with questions of civil liability. In neither case he exercises his power as an inferior Criminal Court, and, therefore, in my opinion, his order cannot be revised by this Court under Section 435 Criminal Procedure Code.
4. In Section 80 of the Gwalior Municipal Act of Samvat 1993 procedure has been laid down for making references to the High Court in matters affecting taxes or principle of assessment. Then, Section 147 deals with criminal revisions. This Court, under this section can revise only those orders which are passed under Section 109 or Section 143. This case does not come under these sections or under Section 159 or chapter 9 of the Gwalior Municipal Act. Therefore in my opinion the revision cannot be sustained. In 12 RQ 67 and in 15 RQ 317 this point does not seem to have been, canvassed and under no provision of the Indian' Criminal Procedure Code these cases could have been treated as criminal appeals. These two Gwalior rulings cited by Mr. Vishnubahadur Singh cannot therefore be treated as precedents for the point pressed before me.
5. I have however gone through several rulings of the various High Courts of India on this point. But as the Gwalior Municipal Act differs in many respects from the Municipal Acts of other States in India, the rulings are not very helpful. I would therefore refer, with respect, to a very old ruling of 1874 reported in Baboo Chunder Narain Singh v. Brojo Bulub Govie 21 WR 391 (2). The question in this case was whether the act of the Magistrate in removing an obstruction is in any way a judicial act. Chief Justice Couch referred to Clause (1 of Schedule K) of the Act 6 of 1868 which laid down that whoever builds any wall or erects or sets up any obstruction or encroachment in any public highway shall be liable to a fine not exceeding Rs. 50/-; and the Magistrate shall have power to remove any such obstruction or encroachment, and the expenses of such removal shall be paid by the person erecting the same, and shall be recoverable from him in the manner provided In Section 83 of the Act.
6. The learned Chief Justice then observed:
If the whole of this clause is to be read as one single provision, and the power of the Magistrate to remove an obstruction only exists where the person building or setting up the obstruction has been convicted and punished by a fine, it might be said that the conviction of setting up the obstruction and imposition of the fine and the removal of the obstruction being one act, and the order by the Magistrate that it should be removed being part of the judicial proceeding for punishing the offender the whole was a judicial act; that the removing the obstruction could not be separated from the awarding of the punishment of the fine. But it appears to me that this would not be a reasonable construction of the clause; for, then, it would not provide for the cases where it may be necessary, for purposes of conservancy, mat the obstruction should be removed, and yet no person can be discovered who could be punished for setting it up and made liable to pay a fine, or from whom even the expense of the removal could be recovered. This clause, although it contains two provisions one for the punishment of the author of the obstruction, and the other for the removal of the obstruction must be looked at as if it were in fact two clauses, one providing for the judicial act of determination who the offender is and punishing him, and the other for what may be done separately and without any offender being punished, namely the act of removing the obstruction, which may properly be called an executive or ministerial act.
The learned Chief Justice thereafter observed that these are two distinct acts and
the circumstance that in this instance there has been the imposition of a fine upon the person who is said to have set up the obstruction does not make the act of the Magistrate which followed it, i.e., the act of removing the obstruction, in any way a judicial act,
7. After this decision, in the Bengal Municipal Act of 1884 Section 205 laid down that any order made by the Magistrate under Sections 202, 203, 204, or 233 shall be deemed to be an order made by him in the discharge of his judicial duty. On the basis of Section 205 It had been held that an order made under Section 202 is a judicial proceeding and the High Court had power to revise She order of the Magistrate Alok Mohan Saha v. Narayanganj Municipality AIR (7) 1920 Cal 734 (2) and Nabadweep Municipality v. Puranchand Mukherjee AIR (12) 1925 Cal 934.
8. This view was followed by Dhavale, J., in Chairman Bihar Municipality v. Ramnandi Kuar AIR (28) 1941 Pat 548, because Section 201, Bihar and Orissa Municipal Act, 1922 also provided that every order made by the Magistrate under Section 198 shall be deemed to be an order made by him in the discharge of his judicial duty.
9. In 'angesa Rao v. Swami Nath 29 Cri L Jour 389 : 108 Ind Cas 414, Devadoss, J., held that when a Magistrate acting under Section 221, Madras Local Boards Act recovers a profession tax he acts in the capacity of a Magistrate and his orders are subject to the provision of Sections 435 and 439, Criminal Procedure Code. The judgment is very short and no reasons are given and the ruling can be ignored.
10. In re Dinbai Jiji Bhai Khambatta 43 Bom 864 the facts were that the committee, proceeded to construct the drain as required by their notice and demanded the cost from the applicant. The committee then applied to the Magistrate for recovery of the amount under Section 131(2) of the Bombay District Municipal Act 1901. The Magistrate directed the expenses to be recovered by distress. This order came for revision. A Division Bench of the High Court observed that the Sub-section (2) consists of two parts. The lust part relates to prosecution, to be instituted before the Magistrate and the second part provides for recovery of expenses incurred by the Committee. Any order passed on prosecutions is definitely revisable and the recovery of expenses was to be 'by such Magistrate.' Therefore the Divisional Bench of the Bombay High Court held that an order passed under the second section was also revisable. The words 'by such Magistrate' were emphasised in this judgment.
11. It will be obvious that this Bombay ruling is not applicable in Gwalior. Section 159 of the Gwalior Municipal Act corresponds to Sub-section 1 of Section 173 of the Punjab Municipal Act which lays down that whoever places moveable encroachment upon any street without permission of the committee will be liable to punishment. In the Punjab Municipal Act of 1911 there is Sub-section 2 in this section which empowers the committee to summarily remove the encroachment and recover the expenses incurred by the committee from the offender. Mr. Vishnubahadur Singh has not been able to show me any specific section in the Gwalior Municipal Act which corresponds to Sub-section (2) of Section 173 of the Punjab Municipal Act. This absence of any clause leads Mr. Vishnu Bahadur Singh to place reliance on the provisions of Sections 153 and 78 of the Gwalior Municipal Act and on their combined effect to make up the deficiency in the Gwalior Municipal Act.
12. Section 161(2) of the Bombay District Municipal Act, 1901 may be quoted here in this connection:
Any prosecution under this Act or under any bylaw, thereunder, may be instituted before any Magistrate and every fine or penalty imposed under or by virtue of this Act or any by-law thereunder and also all compensation or other expenses for the recovery of which no special provision is otherwise made in this Act, may be recovered on application to such Magistrate by the distress and sale of any moveable property to the person from whom the money is claimable.
13. In re Dinbai Jiji Bhai Khambatta 43 Bom 864 Heaton J. observed that this sub-section in general provides for (1) the arriving at a judicial decision and (2) to carry out ministerially of that decision, shah J. observed that the power which a Magistrate exercises, under the latter part of the sub-section is ordinarily of a ministerial nature but in some cases it is also a judicial nature. It was on this view that the learned Judges held that the order of the Magistrate under this section is revisable though, with great respect, I think the observations of Sir Richard Couch C.J. in 21 W.R. 391 (2) were more appropriate and reasonable; but as there is no other sub-section in Section 159 of the Gwalior Municipal Act the Bombay ruling or the Punjab rulings are not applicable to the present case.
14. Sections 449 and 450 of the Calcutta Municipal Act (Bengal Act 3 of 1889) gave more powers to the Magistrate and made his order a judicial order. They laid down that the General Committee may apply to the Magistrate and such Magistrate may make an order directing that the work done be demolished or altered by the Chairman at the expense of the owner of the building; or make an order directing that the projection, fixture, additions, etc. be demolished or altered by the Chairman at the expense of the owner; provided that the Magistrate shall not make any such order without giving the owner or occupier full opportunity of adducing evidence and being heard in defence.
15. It will be seen from the above provision that in the Bengal Municipal Act it is the Magistrate who passes the order after hearing the parties but in the Gwalior Municipal Act there is no such provision. In the case before me the Municipality has itself removed the encroachment and asked the Magistrate to realise the expenses which have been fixed by the Municipality from the owner. Mr. Vishnu Bahadur Singh has again and again stressed the paint that the Municipality can pass an order under Section 153 and the Magistrate can realise the dues or the expenses under Section 78 note 3. My difficulty is that Section 153 clearly and specifically mentions that an. order under this section can be passed 'if it is in accordance with the Act.' I have not been shown any provision, rule or by-law framed under this Act, which makes it lawful for the Municipal Committee to remove the Malva as an encroachment and, realise the expenses from the owner without prosecuting him under 159. The difference between prosecution for encroachment and merely recovering the expenses after removal OX encroachment without prosecuting the owner
16. There is also no section in the Gwalior Municipal Act which provides that any order made by the Magistrate under Sections 153 and 78 will be deemed to be an. order made by him in the discharge of his judicial duty. Therefore it is obvious that the Calcutta and Patna rulings referred to above cannot be made applicable to the facts of the present case. An act of removing the obstruction or an act of recovering the cost from the offender by a Magistrate will remain a ministerial act in Gwalior and no revision can lie to this Court against such orders.
17. The ratio decidendi of In re Dalsukh Ram 6 Cri L, Jour 425; 'Karachi Municipality v. Jafferjee Tayabji AIR (14) 1927 Sind 23 and of Municipal Board Benaras v. Ram Sahia Gupta 145 Ind Cas 959 : 34 Cri L Jour 1105 will be a helpful guide in deciding such cases. These cases have held that a Magistrate hearing an appeal or dealing with a question of civil liability is not an inferior Criminal Court to which alone the revisional jurisdiction of the High Court applies under Section 435, Criminal Procedure Code.
18. In the Lokmanya Mills Barsi v. The Municipal Borough of Barsi 41 Bom LR 937 : AIR (26) 1939 Bom 477 Beaumont C.J. held clearly that the question of liability of tax is purely a civil matter and when the Magistrate hears an appeal against a demand notice in a criminal Court and an appeal goes to the Sessions Court, the Sessions Judge in a case of this sort exercises the power of a civil Court and not of a criminal Court and therefore no revision, application lies under the Criminal P.C. It was however held in this case that the High Court has power under Section 115 of the Civil P.C. to entertain an application for revision but such powers should be used sparingly and in proper cases.
19. This view has recently been approved by a Pull Bench of the Bombay High Court in 'D' Monte v. Bandra Borough Municipality AIR (37) 1950 Bom 397 where it is laid down that the Criminal Court may be constituted as a Court designata and civil jurisdiction may be conferred upon the Court. If a Criminal Court exercises that jurisdiction, then it is not necessarily an inferior Criminal Court within the meaning of the Criminal Procedure Code; and if a right of revision is given from a decision of such a Court then that revisional application is civil in its character and not criminal. It was further made clear in this case that the High Court in such matters exercises a special jurisdiction which is conferred on it under Section 110 of the Bombay Municipal Boroughs Act of 1925 and this should be exercised on the civil side.
20. It will thus be clear that if there is no provision in the Gwalior Municipal Act conferring revisional jurisdiction upon the High Court in matters of recovering costs for summary removal of encroachments no revision either on the civil or criminal (side?) will be competent.
21. In a recent case Abdulla Haroon & Co. v. Calcutta Corporation AIR (37) 1950 Cal 36, the question was whether an order passed by a Magistrate under Section 421 Calcutta Municipal Act for destroying at the cost of the owner food or drug which has become unwholesome or unfit for human consumption is a judicial order? R. P. Mookerjee J. after reviewing the entire case law came to the conclusion that the Magistrate in such case is bound to give notice before he arrives at a decision and after hearing the parties he comes to a conclusion. Therefore, the order of the Magistrate is a judicial order. Das Gupta J. on the contrary came to the conclusion that it was entirely tile Magistrate's discretion to hear any evidence or not. The Magistrate is just an alternative to the several Corporation officers or a Councillor or an elderman and the law does not require the Magistrate to issue any notice, take any evidence, or hear any party before passing any order under Section 421(2), Therefore the learned Judge held that the Magistrate acting under Section 421(2) is an Executive Officer and not a Court, and his order for destruction of drugs1 is an administrative and not a judicial order and the High Court has no jurisdiction to revise the order passed by the Magistrate under Section 421. As both the learned Judges agreed in this case that the rule be discharged this case could not go to a third Judge for a final determination of the point canvassed in this case.
22. It will neither be desirable nor justifiable to go through other rulings and to multiply authorities and apply stray observations in the decisions of various High Courts in India for interpreting an altogether different provision which is to be found in the Gwalior Municipal Act. On a perusal of the provisions contained in Sections 153 and 78 and interpreting them together there is no escape from the conclusion that the order of the Magistrate is an administrative order.
23. In the view I take the revision petition is not competent and I dismiss it.