J.N. Bhat, J.
1. This is a criminal reference made by the learned Addl. Sessions Judge Jammu dated 26-6-196S whereby he has recommended that the order of the Munsiff Magistrate, Samba dated 30-1-1962 be set aside.
2. This reference came up before me and I heard the learned Counsel for the parties. The learned Counsel for the parties did not support the order of the learned Magistrate and submitted that the order was illegal, the recommendation of the Addl. Sessions Judge was correct and should be accepted. I called an explanation from the Magistrate concerned. He has given a very lengthy explanation dated 18-3-1964. In view of the controversy raised by the Magistrate about the interpretation of Section 34 of the Town Area Act and the powers of the Magistrate to hold an inquiry as to what sum was actually due from the contractor respondent to the Town Area Committee, I thought it desirable to place this case before a Division Bench, The case, therefore, was heard by a Division Bench of this Court and as some important points of law were raised in this case, we heard the learned Advocate General also. The learned Advocate General also was of the view that the Magistrate's order was absurd and not in accordance with law and should, therefore, be set aside. In view of the lengthy explanation given by the Magistrate, we think it necessary to discuss this case. Further this reference could have been disposed of otherwise too on the admission of the learned Counsel for the parties as well as the learned Advocate General that the order of the Magistrate is erroneous,
3. The learned Magistrate has tried to lay great emphasis on the difference in words used in Sub-sections (1) and (3) of Section 34 of the Town Area Act. According to him Sub-section (3) uses the words 'arrears of contract money due from a contractor' from which the Magistrate infers that he has the power to determine what is actually due from the contractor to the Town Area Committee after a thorough investigation of the claim. His second inference is that it is only from a contractor that the money can be recovered and that too must be arrears of contract money.
4. In this case there is no doubt that the money due is arrears of contract. The respondent is a contractor. The only thing to be decided is whether the expression 'money due' is to be understood money actually found due after a thorough investigation and allowing the contractor set off of any recoverable or irrecoverable claims against the Town Area Committee, or that the Magistrate has to recover and realise the money from the defaulting contractor. The interpretation put by the Magistrate on the word 'due' as empowering him a close examination of the claim is unwarranted.
As pointed out by the learned Advocate General, Sub-section (3) of Section 34 of the Town Area Act is dependent upon Sub-section (1) and the manner of recovery laid down in Sub-section (S) is the same as given in Section 34 (1). Moreover, if the Magistrate had to hold an inquiry as to what was actually due to the Town Area Committee after deducting all permissible, or as we said, all recoverable or irrecoverable claims against the Town Area Committee, then there would be no fun in having a proviso to this sub-section because this proviso clearly lays down the remedy of a person who disputes his liability to pay the amount due under this sub-section or the correctness of the amount demanded. He has to pay the amount demanded from him under protest in writing and may bring a suit in a civil Court to contest his liability and for refund of the amount paid by him. The words 'amount demanded' are clear and are another form of the expression 'writ of demand'. The Magistrate has clearly erred in construing the words 'amount demanded' as amount found due after investigation by the Magistrate. There is no such warrant for any such interpretation.
It is, therefore, clear that it is not within the mower of a Magistrate under Section 34 of the Act to hold la regular inquiry and to find what is actually due from the contractor after giving him all permissible deductions. It is not true mat the Magistrate has to recover from the contractor only arrears of contract money but the fees and damages incurred by the Town Area Committee by reason of a contractor, tenderer or bidder of such contract committing a breach of contract and arrears of rent on account of any immovable property belonging to the Town Area Committee have also to be recovered under this sub-section. Therefore the interpretation of the learned Magistrate that only contract money can be recovered under this sub-section is not correct.
5. The learned Magistrate has given set off of Rs. 1036/- to the respondent as money which was to be paid by two persons Karam Chaud and Shital Singh to the contractor. This money was due from those two persons to the contractor respondent. He has not been able to recover the same. The learned Magistrate therefore held that it was the responsibility of the petitioner Town Area Committee to recover this sum from them. And whether the sum were recovered or not by the Town Area Committee from these people the contractor respondent has been given credit for the same amount. This is a most unusual and preposterous proposition of law that the Magistrate has propounded. His reference to Sections 63 and 41 of the Contract Act is also misconceived and not proper. The Magistrate has applied the principle of set off in this ease which is beyond the scope of the language of Section 34. In a civil matter also I am not only doubtful but positive that such a set off cannot be allowed to the respondent as has been allowed by the Magistrate in these proceedings.
6. It follows that the order of the Magistrate, to say the least, has been passed in a most careless and negligent manner and it may be noted that such orders, which are so absurd and perverse, can have an important bearing on the working of such presiding officers. The reference is accepted, the order of the learned Magistrate is vacated and the case is sent back to the trial Court for disposal according to law in the light of the observations made above.
S. Murtaza Fazl Ali, J.
7. I entirely agree with the learned and lucid judgment of my brother Bhat J. and would like to add a few lines of my own.
8. The point involved in this case is a very short and simple one, and arises out of the interpretation of Section 34 of the Town Area Act, the relevant portion. of which runs as under:
(1) Arrear of any tax or of any fee or any other sum due to the Town Area Committee under this Act or rules made thereunder may be recovered, on the expiry of two weeks from the date specified for payment in the writ of demand, on application to a Magistrate having jurisdiction within the limits of the town area or in any other place within the State where the defaulter may, for the time being reside, by the attachment and sale of any movable or immovable property belonging to such defaulter and within the limits of such Magistrate's jurisdiction.
(2) Such attachment and sale shall be made in the same manner as attachment and sale of movable or immovable property in execution of a decree of a civil court.
(3) Arrears of contract money due from a contractor for the collection of any of the town area taxes or fees and damages incurred by the Town Area Committee by reason of a contractor or tenderer or bidder of such contract committing a breach of contract and arrears of rent on account of any immovable property vested in or under the control of a Town Area Committee from whatever date due may be recovered in the manner laid down in Sub-section (1); provided that if any person disputes his liability to pay the amount due under this sub-section or the correctness of amount demanded he may pay the amount demanded from him under protest in writing and may bring a suit in a civil court to contest his liability and for refund of the amount paid by him.
9. It seems to me that the Act has provided a summary procedure for recovery of any amount which is found due from a contractor of the Town Area Committee by investing the Magistrate with powers of executing the writ of demand in a rough and ready manner. Clause (2) of Section 34 indicates the nature of jurisdiction of the Magistrate namely that the attachment and sale shall be made in the same manper as attachment and sale of movable and immovable .property and execution of a decree of a civil court. Thus, from a perusal of the plain language of the section it is manifest that the Magistrate is merely an executing agency and cannot go behind the writ of demand issued to him for execution. The Magistrate to whom the writ of demand is sent is not at all competent to enter into the merits of the dues found or assessed against a contractor by the Town Area Committee on the same principle as an executing Court cannot go behind a decree. The Magistrate's limited jurisdiction is merely to realize the amount as provided for in the procedure laid down by this section. This intention of the statute is further reinforced by the proviso to Sub-section (3) of Section 34 of the Act which gives a person a right to go the civil court where he disputes his liability to pay the amount due. The proviso, therefore, completely excludes the Magistrate from questioning the validity of the writ of demand and debars him from an inquiry into the merits of the amount due assessed by the Town Area Committee.
10. In the instant case, the learned Magistrate seems to have, by a process of fruitless imagination, constituted himself a Court of appeal against the writ of demand sent to him for execution. The Magistrate has undoubtedly transcended the limits of the powers conferred upon him by Section 34 of the Town Area Act. The writ of demand can be questioned only where there is an inherent lack of jurisdiction, for instance, where a writ of demand is issued for execution not against a contractor but against a person other than a contractor. Such, however, is not the case here. The language of the section is plain and unambiguous, and I do not see any reason why the learned Magistrate should have raised a useless controversy over the matter. I, therefore, agree with my learned brother that the order of the learned Magistrate in going into the merits of the writ of demand and striking out certain amounts of money on the ground of set off was not only unjustified but was in direct contravention of the clear and specific provisions of Section 34 of the Town Area Act. The reference in my opinion must, therefore, be accepted, the order of the Magistrate be set aside and the Magistrate be directed to proceed according to law, in the light of the aforesaid observations.