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Judgment
Petitioners are tenants of Contonment Board from 1990. They allege that at the time of induction as tenants the Contonment Board charge
'Pagri from them ranging from Rs. 50,000 to 1.50 lacs. They further submit that Section 4 of the J&K Houses & Shop Rent Control Act was
violated by charging ' Pagri'. They further submit that some of them have filed applications u/s 8 under the House and Shops Rent Control Act
before the Rent Controller and are pending before the Rent Controller. That inspite of thes proceedings being pending, respondent moved the
Court of Judicial Magistrate under Section 259, who took cognizance of the matter and issued order on 28.4.1994,15.4.1994 and 13.4.1994 and
also issued warrants of recovery against the petitioners.
These warrants have been challenged by the petitioners in this petition.
In the first instance this Court would like to say that all the petitioners have independent cases, though point of law may be same, yet they have
filed only one petition.
This practice needs to be checked.
The warrants issued against the 'petitioners under section 259 have been challenged on various grounds which are enumerated below:
a) That SubJudge, City Judge, Munsiff, Judicial Magistrates designated under the Contonment Act, 1924;
b) That the learned Magistrate has not perused any documents or evidence before issuing the warrants;
c) That no opportunity of being heard was afforded to the petitioners before issuing warrants.
d) That the Magistrate had no power under the Central Criminal Procedure Code of 1973 as he was a Magistrate only under the Local Criminal
Procedure Code and not under the Central Criminal Procedure Code;
e) That under the States Criminal Procedure Code, Section 32 creates a bar to recover fine exceeding Rs. 5000 as a magistrate is only
empowered to impose and recover fine upto Rs. 5000
Objections have been filed and I have heard the learned counsel for the parties.
Two arguments have been advanced at the Bar for the consideration of this Court:
Whether it is necessary to designate a Magistrate before he exercise power in an application u/s 259 of the Contonment Act, 1924?
Whether a Magistrate who is a Magistrate in terms of the local Criminal Procedure Code can exercise powers on an application made by the
Contonment Board in terms of Section 259 of the Contonment Act, 1924?
The frist contention was made on the strength of a judgement of High Court of Mysore, reported in Sales Tax Cases Vol 281971, titled Mohan
Lal Pretn Chand Vs. Comm. Tax Officer. This is a judgment by a Division Bench, The Division Bench of Mysore High Court held: while analysing
Section 13 Sales Tax Act of Mysore state tftet the Magistrate who had been empowered to recover the arrears of tax Was a persona desjgnata
and not as an inferiqr criminal Court.
This matter came before the Supreme Court also in Contonment Board, Ambala Vs. Pyare Lal, reported in AIR 1966 SC 108.
An application under section 259 was made before the Magistrate who passed order for recovery which Was challenged before the Sessions
Judge in a revision. The learned Sessions Judge came to the conclusion that the arrears for which the application had been made were not
recoverable, therefore, the Magistrate had no jurisdiction to order its recovery. The learned Sessions Judge after arriving to the conclusion made a
reference to the High Court. The High Court agreed with the conclusions drawn by the learned Sessions Judge. The matter went in Special leave
petition before the Apex Court and for the first time an argument was advanced before the Court that since the Magistrate entertaining an
application u/s 259 of the Contonment Act was exercising his powers as a persona designata and was not an inferior court, therefore, the revision
before the Sessions Judge and subsequent reference by him to the High Court was without jurisdiction. It was argued before the Supreme Court
that since the Magistrate was not exercising any powers under criminal procedure code but was exercising powers under the Contonment Act,
therefore, any order passed by the Magistrate in an application Under Section 259 of the Contonment Act would not be revisable before the
Sessions Judge.
Unfortunately, the Apex court did not decided the argument on two grounds
That the argument had been advanced for the first time before the Supreme Court
That even if it was held that no revision was available against the order passed by the Magistrate, even then High Court had ample powers
under Art. 226 of the Constitution to look into the matter.
Therefore, the only judgement which is before this court is the judgement of Mysore High Court, but the judgement of Mysore High Court is
clearly distinguishable because the High Court of Mysore was not interpreting Section 259 of the Contonment Act but was interpreting provisions
of local sales Tax Act.
It is imprtant to reproduce Section 13(3) of the Mysore Sales Tax Act, which reads:
Any tax assessed, or any other amount due under this act from a dealer, may without prejudice to any other mode of collection, be recovered:
a) as it were an arrear of land revenue, or
b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him
On interpretation of this Section, the High Court of Myffore came to the conclusion that it was necessary that the Magistrate should have been a
persona designata.
Now let us see the difference with section we are dealing with presently:
Section 259(1) reads as under: ""Notwithstanding anything elsewhere contained in this Act, arrears of any tax, and any other money recoverable
including rent on land and building due under leases or licences executed by or in favour of a Board or the Defence Estates Officer under this Act
or the rules made thereunder may be recovered either by suit or, on application to a Judicial Magistrate having jurisdiction in the contonment or in
any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, either by the attachment and
sale of immoveable property of that person, which is within the limits of the jurisdiction of such Judicial Magistrate, or by both these methods, and
shall if payable be the owner of any property as such, be a charge on the property until paid, provided that the tools of artisans growing crops up
to the value of five hundred rupees and implemetns and cattle used for the purpose of agriculture shall be except from such distress or sale.
Section 258(3) reads as under:
Upon receiving the application, the Judicial Magistrate referred to in SubSection (1) may take action for the recovery of the amount of tax, rent or
money from the person specified in the application and if such amount were a fine recoverable under Sentence passed by him and the provisions of
Section 421 and 422 of the Code of Criminal Procedure, 1973, shall so far as may be, apply to the recovery of such amount Provided that the
recovery of no such amount shall be made by the arrest or detention in prison of the said person.
While interpreting the two sections, one of the Mysore Sales Tax Act and other of the Contonment Act, there is one significant difference.
Whereas in the Contonment Act, it has been stated that the application has to be made to a Judicial Magistrate having jurisdiction in the
Contonment or in any place where the person from whom such tax, rent or money is recoverable, may for the time being be residing. This
difference is basic and it is not on the sweet will of the Gontonmant Board to approach any Magistrate or designate Magistrate for the purpose of
his getting the jurisdiction. It is by operation of law that the Magistrate where the Contonment Board is situated or a Magistrate where the person
who is in arrears resides, gets the jurisdiction by the operation of law itself, therefore, In my view the Division Bench judgement of the Mysore
High Court wouid not apply and the Magistrate exercising jurisdiction under Section 259 of the Contonment Act is not a persona designata.
It is not the grievence of the petitioners that the Magistrate who had passed the warrants against them has had not the territorial jurisdiction
over the contonment or the area where the petitioners reside, therefore, the first argument advanced by the learned counsel for the petitioners must
fail.
The second argument which has been agitated before me, vehemently is that Magistrate who has issued the warrants against the petitioners, is
a Magistrate in terms of local Criminal Procedure Code and not a Magistrate under the Central Criminal Procedure Code.
It is true that Central Criminal Procedure Code is not applicable to the State of Jammu and Kashmir. We have almost identical procedure of
Code of Criminal Procedure 1933 AD applicable.
It is neither the Central Code nor the State Code which gives a Magistrate the power to effect recoveries of arrears due to the Contonment
Board. The power is given to him by the Contonment Act of 1924 itself which is applicable to the State of Jammu and Kashmir also. A reference
made in Section 259(3) of the provisions of Central Code do not exclude the jurisdiction of a Magistrate under the Local Criminal Procedure
Code. By the judicial fiction we must read the reference to the local Criminal Procedure Code in Section 259 otherwise there will be a anamolous
position because the Contonment Act, 1924 is applicable to the State of Jammu and Kashmir also whereas the Central Criminal Procedure Code
is not applicable and there is no mechanism available for appointing a Magistrate under the Central Criminal Procedure Code.
A reference to Criminal Procedure Code in Section 259 has only been laid down in order to pinpoint the procedure that has to be followed by
the Magistrate. The procedure laid down in such cases in the Central Code is almost identical to the procedure laid down in the local code,
therefore, there will be no prejudice to any of the parties if the matter is taken cognizance of by the local Magistrate, therefore, I hold that where a
reference is made by the Central Code it must be accepted as a reference to the local code also. In case it is held that the Local Magistrate has no
jurisdiction to entertain applications under the Contonment Act, then there will be an anamolous position without any answer, therefore, this
argument is also rejected.
The third argument made atthe Barwas that the powers of the Magistrate under the Local Code are limited and since he can only impose a fine
of Rs. 5000/ he could not recover more than that.
Looking to the Section itself, it makes it clear that whatever due or whatever is claimable by the competent authority can be recovered by the
Magistrate. The power of the Magistrate is not limited by limitation under Code of Criminal Procedure. He derives his power from Section 259
and not from any provision of Criminal Procedure Code. The criminal procedure code is made applicable only with regard to the procedure to be
adopted by the Magistrate and not for execution of its powers. The limitation with regard to the powers of the Magistrate have been given in the
Contonment Act itself.
In Subsection (3) of this Section, these words have been mentioned:
May take action for the recovery of the amount of tax, rent or money from the person specified in the application and if such amount were a fine
recoverable under a sentence....
The reference made to ""Recoverable under a sentence"" is only to make the procedure applicable as given under Section 421 and 422 of the
Code of Criminal Procedure and not to limit the power of the Magistrate with regard to the amount that is recoverable, that is unlimited, therefore,
while rejecting this argument, I with respects, disagree with the judgement of the Mysore High Court (supra) on this ground.
Lastly I would like to comment on the conduct of the petitioners. Since through this petition they are seeking extra ordinary and discreationary
relief from this court, their conduct becomes important.
In 1990 the petitioners became tenants and till date successfully they have been avoiding payment of rent. They filed a writ petition in this court.
Record of that petition was summoned and I have examined the record. The writ petition was dismissed by this Govt. and while dismissing the writ
petition on 1091992, Court observed as under:
So far the question whether non refundable amount paid by the petitioners is a Pagri or development charge same is also beyond writ jurisdiction
of this court, particularly when such allegations have been denied by the other side. Moreover, facts on record reveal that respondents completed
the construction of the shops in the first phase and handedover the same to the petitioners in accordance with the tenders, where the petitioners are
carrying on their business. When they are running the shops there is hardly any ground to debar respondent No. 2 from charging the rent in
accordance with terms of the lease.
In this writ petition also, a direction was sought from the Court for quashing the notice of demand of arrears of rent which was declined by the
Court by holding that when the petitioners are running the shops, there is hardly any ground to debar the contonment authorities from charging the
rent in accordance with terms of the lease. The petitiners have not even mentioned in their petition about the earlier petition.
In the petition, the petitioners have admitted that they are the tenants and they have not paid the rent, as according to them they have charged
'Pagri'. These questions cannot be gone into this petition but at the time it may be observed that petitioners have so far succeeded in not paying the
rent.
For the reasons given above, I dismiss this petition and in the circumstances of the case, impose costs of Rs. 300 on each petitioner, which
shall be deposited within fifteen (15) days in the Lawyers Welfare Fund. If the amount is not deposited the Additional Registrar shall take
appropriate steps in terms of law for recovery of the costs.