Kanhya Ram etc. vs The State of Himachal Pradesh and Another

Chet Ram Thakur, J.—This and the other connected criminal revision No. 6 of 1975 and Cr. M.P. (Main) No. 21 of 1975 are directed against the orders dated 20-2-1975 and 22-2-1975 passed by Shri Ravi Dhingra, Collector (S.D.M, Sundernagar) whereby he convicted the Petitioners u/s 12 of the Himachal Pradesh road side Land Control Act, 1968 (shortly called the Act) and sentenced them to a fine of Rs. 100/- each. They were further directed to immediately vacate the possession of the encroached land failing which it was ordered that they shall be liable to punishment with fine at the rate of Rs. 5/- each per day to be calculated from the date of that order and that if the building in each case was not dismantled even after three months of the order then further action was to be taken according to Section 14(b) of the aforesaid Act. Since these petitions raise common question of law, therefore, they shall be decided by this single judgment.

The learned Counsel for the Petitioners contends that the learned Collector had no jurisdiction to take cognizance of the case and as such the order is without jurisdiction and he has referred me to Sections 12 and 13 of the Act as also to Section 3 of the Code of Criminal Procedure, 1973.

Sub-section (1) of Section 15 of the Act reads as:

No court inferior to that of a Magistrate of the first class shall be competent to try any offence punishable under this Act.

Therefore, from this what follows is that it is the Magistrate of the first class who is empowered to try the offences under the Act. Now we have to see whether it is the Executive Magistrate or the Judicial Magistrate who shall take cognizance of the case triable under the Act. In the instant cases as would be apparent from the impugned order the same were passed by the Collector who is not a Magistrate. In fact, the Collector exercises powers under the Land Revenue Act. Section 3 of the Code of Criminal Procedure contains certain rules of construction and Sub-section (1) of this section reads as:

In this Code-

(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires-

(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;

(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate.

Therefore, from this section it would appear that any reference, without any qualifying words, to a Magistrate, shall be construed as a reference to a Judicial Magistrate, unless the context otherwise requires. In Section 15 of the Act there are no qualifying words nor the context is to the contrary which would necessarily mean that it refers to a Judicial Magistrate and, therefore, even the Executive Magistrate if it may be assumed as was sought to be argued by the learned Advocate-General the order passed by the Collector even as in his capacity as Executive Magistrate cannot be said to be a valid order as it is not an order passed by a Judicial Magistrate as contemplated u/s 15 of the Act read with Section 3 of the Code of Criminal Procedure. Therefore, this order is patently without jurisdiction and the powers under Article 227 of the Constitution have rightly been invoked by the learned Counsel for the Petitioners to set aside these non-est orders. Further from the reading of Section 12 of the Act itself it would appear that it is the Magistrate who shall have the power to convict and punish a person under Sub-section (1) of that section, whereas the Collector can exercise the power only under Sub-section (2) of that section. The order, it appears, has been passed u/s 14(b) of the Act. Section 14 in fact deals with the composition of offences and this is undoubtedly the power conferred on the Collector. But, here, there is no question of compounding the same, rather, he has convicted and sentenced each of them as contemplated u/s 12(1) of the Act. Therefore, this order, as already stated, is without jurisdiction and the High Court can definitely exercise its powers of superintendence under Article 227 of the Constitution.

The learned Counsel for the Petitioners had argued that the necessary pre-requisite for exercising the powers under the Act had not been complied with. The learned Advocate-General for the State had invited reference to certain gazette notifications, but I think it is not necessary to go into this question since the cases succeed on the first point that the Collector had no jurisdiction in the matter and the orders being without jurisdiction are non-est and therefore, liable to be quashed.

The result is that the orders are quashed and the Petitioners are acquitted and the fine, if paid, shall be refunded.

It may be observed that the State may take necessary steps, if so advised before the competent court of jurisdiction.