1. In this writ petition, important questions arise for determination.
2. Material facts are briefly these :
On the coming into force of the Karnataka Debt Relief Act, 1976 (hereinafter to be referred to as 'the Act'), the petitioner made an application under the Act, before the Sub-Divisional Magistrate, Bidar (hereinafter to be referred to as 'the Magistrate'). By that application, he sought to obtain from the Magistrate a declaration that he was a debtor under the Act and a further declaration that a debt due by him to respondent-2 under a simple money bond, had stood discharged. By his order dated 23-8-1976, the Magistrate rejected that application finding, inter alia, that the petitioner had not pledged any article with respondent-2 and that he was also not a debtor under the Act.
3. The petitioner challenged that order by preferring a revision application before the Sessions Judge (respondent-3) purporting to be under sub-section (1) of S. 397 of the Cri.P.C. 1973 (hereinafter to be referred to as 'the Code'). By his order dated 22-2-1978, the Sessions Judge dismissed the revision application as unmaintainable, being of the view that a Magistrate functioning under the Act could not be regarded as an inferior criminal court as would make his order revisable under sub-section (1) of S. 397 of the Code. Thereafter, the petitioner has challenged before this court the said Magistrate's order by presenting this writ petition, which is subsequently referred by Puttaswamy J., for being decided by a Division Bench. Thus, the writ petition has come up for our decision.
4. In this petition, the main question that arises for our determination is whether an order of a Magistrate made under the Act is amenable for revision by the High Court or any Sessions Judge under sub-section(1) of S. 397 of the Code.
5. As the petitioner's learned Counsel did not appear to evince the necessary interest in the case, we requested Sri K. Shivashankar Bhat, learned Senior Standing Counsel for the Central Government, to render his assistance in the case, as an amicus curiae and Shri M. R. Achar, learned Government Advocate, to appear for the Magistrate (respondent-1).
6. Sri Murlidhar Rao appearing for respondent-2 submitted, at the outset, that a Sub-Divisional Magistrate or a Taluka Executive Magistrate functioning under the Act being an inferior criminal court within the meaning of sub-section (1) of S. 397 of the Code, any order made under the Act by such a Sub-Divisional Magistrate or a Taluka Executive Magistrate, becomes amenable for revision, by the High Court or any Sessions Judge under that sub-section, and not by the High Court in exercise of its writ jurisdiction under the Constitution. But, that submission was contested by Sri K. Shivashankar Bhat and Sri M. R. Achar, who urged that a Sub-Divisional Magistrate or a Taluka Executive Magistrate functioning under the Act, could never be regarded as an inferior criminal court, as would make his order revisable under sub-section (1) of S. 397 of the Code. They maintained that a Sub-Divisional Magistrate or a Taluka Executive Magistrate under the Act, in the light of the express provisions in that Act, could only be regarded as a special Tribunal invested with the authority to discharge the functions enumerated therein in the mode and manner specified thereunder.
7. Sub-section (1) of S. 397 of the Code reads as follows :
'(1) The High Court or any Sessions Judge may call for and examine the records of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of S. 398'.
8. An Executive Magistrate, be he a Sub-Divisional Magistrate or a Taluka Magistrate, exercising his jurisdiction under the Code is an inferior criminal Court within the meaning of the above sub-section, becomes obvious from the explanation found therein. It is common ground that in exercise of its powers under sections 20 and 21 of the Code, the Karnataka State Government has appointed Assistant Commissioners in-charge of the Sub-Divisions of the districts as the Sub-Divisional Magistrate therefor and the Tahsildars in-charge of the Talukas as the Taluka Executive Magistrates therefor to exercise powers with which they are invested under the Code.
9. When we come to the Act, we find from its various provisions that a Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in that behalf, who is required to exercise all or any of the powers with which he is invested thereunder, in the matter of giving relief to the debtors from their indebtedness, shall exercise all or any of them only according to the mode and manner specified therein.
10. Clause (e) of S. 4 of the Act, which declares that every movable property pledged by a debtor shall stand released in favour of such debtor, requires the creditor to return the same to the debtor forthwith. Where the creditor fails to so return, it enables the debtor to make an application to a Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, having jurisdiction over the place where the debtor resides and obtain the return of the movable property pledged.
Further, sub-section (1) of S. 5 of the Act requires the creditors referred to in Clause (e) of S. 4, within 45 days from the 11th day of November 1975, to furnish to the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, having jurisdiction over the area where such creditor has his ordinary place of business, a statement containing the names of all debtors who have pledged articles with him, the nature of description of the articles pledged, the amount advanced and due as on 21st October 1975 and such other particulars as may be prescribed. Sub-section (2) thereof enjoins the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, that on receipt of such statement and after such summary enquiry conducted in the manner provided under the Karnataka land Revenue Act, 1964, as he considers necessary, by order, to determine which of the debtors are entitled to relief under S. 4 and direct the creditor to produce on or before the date specified in the order, the articles pledged by such debtors. Sub-section (3) thereof further enjoins the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, that if the creditor fails to produce the article as directed in the order made under sub-section (2), to recover possession of the articles pledged, from the creditor and for this purpose, to exercise the same powers as are invested in him under the Code regarding search and seizure. Sub-section (4) thereof furthermore, enjoins the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, that after such production or recovery of the article pledged, to deliver such article to the debtor. Besides, sub-section (9) thereof empowers the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, either on an application made by a debtor or otherwise, notwithstanding anything contained in the preceding sub-section, to enter any premises of the creditor, search and seize articles pledged by the debtors and to arrange for their safe custody and thereafter to proceed to determine, by order, as to which of the articles so seized are to be released to the debtors.
11. Clause (f) of S. 4 of the Act, which declares that every mortgage executed by the debtor in favour of the creditor, shall stand redeemed, requires that the mortgaged property shall be released in favour of such debtor. Where the creditor fails to so release, it enables the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf having jurisdiction over the place where the mortgaged property is situated, either suo motu or on an application of the debtor, and after such enquiry as he may deem fit, to put the debtor in possession of the mortgaged property.
Further, sub-section (5) of S. 5 of the Act requires that every creditor referred to in Clause (f) of S. 4 thereof, within 45 days from the 1st day of March 1976, to furnish to the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, having jurisdiction over the area where such creditor ordinarily resides, a statement containing the names of all the debtors who have mortgaged properties to him, the full description of such properties, the amount advanced and due as on 21st October 1975 and such other particulars as may be prescribed. It also enjoins the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf, that on receipt of such statement, by order, to determine as to which of the debtors are entitled to the relief under S. 4 and to direct the creditor to make an endorsement of discharge on the mortgage deed and to deliver the same to the debtor along with the possession of the mortgaged property. Moreover, it enjoins the Sub-Divisional Magistrate or any other Executive Magistrate authorised by the State Government in this behalf that if the creditor fails to act according to the directions, to record the fact of discharge and to issue a certificate to that effect to the debtor and to deliver the possession of the property to the debtor by using such force as may be necessary.
12. When the Sub-Divisional Magistrate or any other authorised Executive Magistrate referred to in each of the above provisions of the Act, is required to exercise all or any of the powers with which he is invested thereunder, that too, only according to the mode and manner specified therein, such Sub-Divisional Magistrate or the Executive Magistrate, as the case may be, it has to be held by necessary implication, is prohibited from exercising such powers with which he is so invested, in a mode or manner falling outside the relevant provisions of the Act muchless in the mode and manner contemplated under the Code (See : Assistant Collector, Central Excise, Calcutta v. National Tabaco Co., Ltd., : 1978(2)ELT416(SC) ). The Karnataka Debt Relief Act, 1980 a subsequent Act of the very Karnataka Legislature, which contains pari materia provisions, intended to supplement the provisions of the Act, when explicitly provides that the Authority required to exercise all or any of the powers thereunder in the matter of giving relief to debtors from their indebtedness, is the Assistant Commissioner including any officer of the Revenue Department not below the rank of Tahsildar authorised by the State Government to exercise the powers of the Assistant Commissioner under that Act, it follows that the intendment of the Legislature under the earlier Act, could not have been different merely because the self same Assistant Commissioner or Tahsildar required to exercise powers under the earlier Act, were denoted as Sub-Divisional Magistrate or Taluka Magistrate. Moreover the view we have taken of the status of the Sub-Divisional Magistrate or any other Executive Magistrate under the Act, since well accords with the status of the Assistant Commissioner or the Tahsildar under the subsequent Act, conforming to the requirement of construing provisions of similar legislative measures harmoniously, unless the context otherwise compels, we are not left in doubt that the person aggrieved by an order of the Sub-Divisional Magistrate or the Taluka Magistrate made in exercise of the powers invested in him under any of the provisions of the Act and according to the mode and manner specified therein, cannot seek to obtain revision of such order by invoking the revisional jurisdiction of the Sessions Court or the High Court, under sub-section (1) of S. 397 of the Code by equating such Magistrate to an inferior criminal court contemplated under that subsection.
13. Sri Murlidhar Rao, however, contended that the Magistrate functioning under the Act has to be regarded as a Magistrate functioning under the Code because of the provision in sub-section (3) of S. 5 which provides that such Magistrate may recover possession of article from the creditor by exercising the same powers as are invested in him under the Cr.P.C. 1973, regarding search and seizure. We are unable to find any merit in this contention. The provision in sub-section (3) of S. 5 of the Act, is merely a legislative device to incorporate the provisions relating to search and seizure under the Code in the Act, so that the Magistrate functioning under the Act, could proceed in the matter as part and parcel of the Act itself. In fact this device of incorporation adopted by the legislature, instead of advancing the contention of Sri Murlidhar Rao, negatives it, in that, if it was the intention of the legislature that the provisions of the Code should be followed by the Magistrate concerned under the Act as a matter of course, there would never have been necessity to state that only the provisions relating to search and seizure under the Code, should be resorted to by the Magistrate functioning under the Act.
14. Sri Murlidhar Rao, next, contended that the Sub-Divisional Magistrate or any other Executive Magistrate, who is made a functionary under the Act, should be regarded as an inferior criminal court for the purpose of sub-section (1) of S. 397 of the Code, even if the order made or proceeding held by such Magistrate cannot be said to have been made or held under the Code. He sought support for this contention from an observation of the Full Bench of Andhra Pradesh High Court in Public Prosecutor (A.P.) v. L. Ramaiah (1975) Cri LJ 144, which is to the following effect (at Pp. 155-56) :
'Therefore, for attracting Sections 435 and 439 Cr.P.C., what is important is whether the proceeding is held by an inferior court. It does not matter even if the proceeding cannot be said to have been held under the Code of Criminal Procedure.'
He maintained that a Magistrate under the act even if he has not made any order or held a proceeding under the Code, such Magistrate being an inferior criminal court, sub-section (1) of S. 397 is attracted in respect of his order or proceeding. We find it difficult to uphold the said contention for the reasons which we shall presently state.
15. Two questions, which arose for determination in Ramaiah's case (supra) were : (1) whether the District and Sessions Judge acting under S. 6(c) of the Essential Commodities Act, as a judicial authority, acts as a Court and not as a persona designata; and (2) whether a revision is maintainable under the provisions of the Criminal Procedure Code against an order of the appellate authority under S. 6(c) of the Essential Commodities Act, even though the confiscation proceedings cannot be said to be those that are held under the Criminal Procedure Code. Though both the questions were answered by the Full Bench in the affirmative, the observation relied upon by Sri Murlidhar Rao in support of his contention, is the one made in answering the second question. The Supreme Court, in Thakurdas v. State of Madhya Pradesh : 1978CriLJ1 , has, after referring to the questions which arose for determination by the Full Bench in Ramaiah's case (supra), observed (Para 10 of AIR 1978 SC) :
'While summing up its conclusions, the Court held that when a judicial authority like an officer who presides over a court is appointed to perform the functions, to judge and decide in accordance with law and as nothing has been mentioned about the finality or otherwise of the decisions made by that authority, it is an indication that the authority is to act as a court in which case it is not necessary to mention whether they are final or not as all the incidents of exercising jurisdiction as a court would necessarily follow. We are in broad agreement with this conclusion.'
These observations significantly omit reference to the answer given by the Full Bench to the second question in Ramaiah's case (supra). In the context of the first question decided in Ramaiah's case to which we shall presently advert, we find it difficult to understand the answer given by the Full Bench to the second question as laying down whatever be the express provisions in an Act, which invests a Magistrate to discharge the functions under such Act, the fact that a Magistrate is invested with such power is in itself sufficient to attract the revisional jurisdiction of the Sessions Judge of the High Court under the Code.
16. Ratio of the decision in National Telephone Co., Ltd. v. The Post Master General 1913 AC 546, on which reliance is placed by the Full Bench in answering the first question, reads :
'When a question is stated to be referred to an established court without more, it imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise attaches.'
The answer to the first question then given reads thus :
'In the case before us, similarly there being nothing to the contrary in the Essential Commodities Act, the order passed by a Sessions Judge as a court in an appeal under S. 6(c) of the Act would be liable to revision by the High Court as provided under sections 435 and 439, Cr.P.C.'
17. From the said answer given by the Full Bench itself to the first question, it becomes obvious that if there are provisions in an Act indicating that the appellate and revisional jurisdiction under the Code are not attracted to the orders made or proceedings held by a court or a Magistrate specified in that Act, such appellate or revisional jurisdiction under the Code is not attracted. Hence, in the present case where the provisions in the Act sufficiently indicate that the powers exercisable by the Magistrate referred to therein should be exerciisions, it is hard to conceive that the revisional jurisdiction under sub-section (1) of S. 397 of the Code could be attracted for correcting the orders of such Magistrate under the Act.
18. In Darga Committee, Ajmer v. State of Rajasthan : 2SCR265 , the Supreme Court considered the question whether a Magistrate, who entertains an application made under S. 234 of Ajmer Merwara Municipalities Regulation was an inferior criminal court under S. 439 of the Code of Criminal Procedure. S. 234 of the Regulation enabled the Municipal Committee to make an application before the Magistrate for recovering expenses incurred by it in carrying out repairs under S. 222(4) thereof, from the building owner, treating those expenses as the amount of tax levied by it. The Supreme Court answered the question in the negative agreeing with the view of the High Court that the Magistrate entertaining the application under S. 234 thereof, was not an inferior criminal court under S. 439 of the Code of Criminal Procedure. In so answering, the Supreme Court observed, inter alia, thus (Para 6) :
'.......... 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 persona designata and not as a Magistrate functioning and exercising the authority under the Code of Criminal Procedure. He cannot therefore be regarded as an inferior criminal Court.'
19. From the above enunciation of law made by the Supreme Court, it follows that for a Magistrate to be regarded as an inferior criminal court, so as to make his orders amenable for correction under sub-section (1) of S. 397 of the Code of Criminal Procedure, he must be regarded as a Magistrate functioning and exercising his authority under the Code itself. In the present case, when the Magistrate, as already pointed out, performs his functions under the provisions in the Act and that too, in accordance with the mode and manner provided therein, we find it difficult to regard such a Magistrate as one who functions and exercises his authority under the Code merely because when appointed as such by the State Government under S. 20 or 21 of the Code, he would be an inferior criminal court thereof. Consequently, the proceedings held and the orders made by a Magistrate under the Act, in our view are not amenable for revision by the High Court or any Sessions Judge under subsection (1) of S. 397 of the Code.
20. In the said view of the matter, were in agreement with the conclusion of Sabhahit, J., in Cr.R.P. No. 217/82 that an order made by a Taluka Magistrate under the Act is not amenable for correction under S. 397(1) of the Criminal Procedure Code though our reasons therefor are not the same.
21. As to whether the Magistrate functioning under the Act would be regarded as a Tribunal for purposes of Art. 227 of the Constitution, is yet another question which arises for our determination in this writ petition.
22. The Act, as indicated in its preamble, is intended to provide relief from indebtedness to small farmers, landless agricultural labourers and weaker sections of the people in the State of Karnataka. S. 4 of the Act declares, inter alia, that every debt advanced before the commencement of that Section including the amount of interest, if any, payable by the debtor to the creditor shall be deemed to have been wholly discharged. Debtor as defined in sub-section (3) of S. 5 means a small farmer or a landless agricultural labourer or a person belonging to the weaker section of the people. As already pointed out, sub-sections (e) and (f) of S. 4 and sub-sections (2), (5) and (9) of S. 5 of the Act enable the Magistrate, by order, to determine which of the debtors who have pledged their movables with the creditors or who have mortgaged their immovable properties with the creditors, are entitled to relief under S. 4 and to give effective relief therefor. Again, as to what are the preliminary steps which that Magistrate could take before determining as to who are the persons entitled to relief as debtors under S. 4 or as to how the order which may be made by him thereafter, could be given effect to, are indicated in some of those provisions. In sub-section (2) of S. 5, it is specified that a summary enquiry should be conducted by such Magistrate in the manner provided in the Karnataka Land Revenue Act, 1964, as he considers necessary before making an order thereunder. Having regard to the express requirement of the provisions that a Magistrate functioning thereunder, has to determine, by an order, the question whether any person is entitled to relief as a debtor under S. 4, it was not disputed and cannot be disputed that such order could only be made after conforming to the rules of natural justice of affording opportunity to the parties of having their say in the matter. If this is true, such Magistrate exercises judicial powers in deciding disputes between the debtor and the creditor under the Act. Such judicial powers are those derived by the Magistrate because of their transfer from the State under the Act. From this, it follows that the Magistrate under the Act, exercises at any rate quasi-judicial functions. Functions exercisable by the Magistrate under the Act could be regarded as quasi-judicial, cannot be disputed in view of the observations of the Supreme Court in Fatechhand v. State of Maharashtra : 2SCR828 made respecting authorised officer under the Maharashtra Debt Relief Act, 1976, which read thus (at P. 1843) :
'Fair play is also afforded in the proceeding not only because the creditor can rebut the certificate but also because under S. 8(6) the authorised officer has the power and duty to determine all questions in dispute. S. 7(7) expressly provides for an opportunity to the creditor and the debtor to be heard. After all, the authorised officer is one who exercises quasi-judicial powers even otherwise on the Revenue Side. While the enquiry is summary, the procedure under the Maharashtra Land Revenue Code will be adopted which is a fair safeguard. Summary trial does not dispense with evidence or sound judgment but merely relieves the adjudicator from maintaining elaborate records. The enquiring officer, may, in appropriate cases, examine the debtor or others who can throw light. To equate 'summary' with 'arbitrary' is contrary to common experience. The obligation for the production of the pledged article by the creditor as a preliminary to the institution of the proceedings is also a just measure so that when a decision is reached the article may be returned to the debtor in the event of the verdict going in his favour.'
23. The point, which, therefore, arises for consideration, is whether an adjudicator, who exercises a part of the judicial or quasi-judicial functions and powers transferred to him by the State, could be regarded as a Tribunal.
24. The Supreme Court, in Associated Cement Co. Ltd. v. P. N. Sharma : (1965)ILLJ433SC , dealt with the question whether the State Government empowered to entertain the appeals against the order of a Welfare Officer under R. 6 of the Punjab Welfare Officers (Recruitment and Conditions of Service) Rules, 1952, is a Tribunal within the meaning of Art. 136(1) of the Constitution and held that the main test to be applied in considering the question about the status of any body or authority as a Tribunal under Art. 136(1) is whether the body or authority has been constituted by the State and has been clothed with the State's inherent judicial powers to deal with disputes between parties and determine them on the merits fairly and objectively. Thereafter, in reaching the conclusion that it is the State Government which was authorised to entertain appeals under R. 6(6) of the said Rules, the Supreme Court observed thus (at Pp. 1605-6) :
'No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory provision conferring on the State Government any specific powers which are usually associated with the trial in courts and which are intended to help the Court in reaching its decisions. The requirements of procedure which are followed in courts and the possession of subsidiary powers which are given to courts to try the cases before them, are-described as trappings of the courts, and so it may be conceded that these trappings are not shown to exist in the case of the State Government which hears appeals under R. 6(5) and R. 6(6). But, as we have already stated, the consideration about the presence of all or some of the trappings of a court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings, is the judicial power of the State or not. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial function.'
In the above Supreme Court case, Bachawat, J., held that the 'tribunal' in Art. 227 of the Constitution also has the same meaning as in Art. 136.
25. When we come to the Act, it becomes apparent from its provisions that the adjudicatory powers exercisable by the Magistrate thereunder, have been conferred on him by the Act itself. Such adjudicatory powers are part of the inherent judicial power of the State transferred to the Magistrate under the Act. If we look to the powers of the Magistrate exercisable under the Act, in the light of the test, laid down by the Supreme Court in the aforesaid decision, we cannot help reaching the conclusion that the adjudicatory power which the Magistrate exercises under the provisions of the Act, is a part of the State's judicial power and that hence he has to be held as a Tribunal within the meaning of Art. 227 of the Constitution. In this view, the proceedings held and orders made by a Magistrate under the Act, become amenable to the writ jurisdiction of this Court under Art. 227 of the Constitution and necessarily under Art. 226 of the Constitution, which is of wider amplitude.
26. We shall now proceed to consider the merits of the order of the Magistrate impugned in this writ petition. That order reads thus :
'Case called. Applicant present. Nothing is pledged with creditor. Applicant is having 9 acres 10 Gt. So, the applicant is not a debtor with K.D.R. Act. So, rejected.'
27. Under the Act, the Sub-Divisional Magistrate or the Taluka Executive Magistrate, as the case may be, could adjudicate respecting loan transactions involving pledges of articles. Loan transaction respecting which the present petitioner had claimed relief from the Magistrate under the Act since related to a simple money bond and not to a transaction involving either pledge of any article or mortgage of any immovable property, the Magistrate (respondent-2) has rightly refused the relief sought by him under the order impugned in this petition. Hence, that order does not call for our interference in exercise of this Court's writ jurisdiction under Arts. 226 and 227 of the Constitution.
28. In the result, we dismiss this petition, directing the parties to bear their own costs.
29. We, however, place on record our appreciation and thanks to Shri K. Shivashankar Bhat for the assistance he rendered to us in this writ petition as an amicus curiae, with his usual amicability and readiness.
30. Petition dismissed.