Om Parkash vs Executive Officer, Patiala

Chopra, J.—These are references by the Additional District Magistrate, Patiala to revise two orders of the Tahsildar, Patiala, dated 13-1-1951 and 14-5-1951 made on applications of the Municipal Committee, Patiala u/s 81 of the Punjab Municipal Act On 23-12-2006 Om Prakash petitioner had got Plot No. 4 in Sabzimandi, Patiala on lease from the Municipal Committee, Patiala for the year 2007. The lease money was fixed at Rs. 9, 600/-. Out of this Rs. 3, 200/- were paid on the day of the lease and the balance was stipulated to be paid in two installment of Rs. 3, 200/- each, on 14-6-1950 and 17-9-1950. On default having been made by the petitioner, the Executive Officer of the Committee ordered that the District Magistrate, Patiala be moved for the realisation of the first installment of Rs. 3,200/-. For this purpose a Robkar (on a printed form) on behalf of the Municipal Committee was presented in the office of the Deputy Commissioner, Patiala. The order of the said officer on the back of the Robkar is dated 22-9-1950 and reads as follows: "D.C. Office, Patiala. Asal haza bagarz karwai wasooli Tahsildar, Patiala, Muraslhoway." The Tahsildar on receiving the papers issued notice to the defaulter on 10-10-1950 ordered him to be summoned by bailable warrants. Om Parkash appeared on 12-10-1950 and took various objections to the legality of the action. The objections were, however, disallowed by the Tahsildar by his order dated 31-1-1951. The petitioner went in revision to the Additional District Magistrate against the order. It may be mentioned here that the Tahsildar in none of his orders or proceedings had expressed or indicated that he was acting as a Magistrate in the matter.

For the realisation of the last installment that fell due 17-9-1950, a handwritten application addressed to the Deputy Commissioner, Patiala was presented on behalf of the Municipal Committee. This application is dated 6-2-1950 and the order made thereon is as follows:

Forwarded to the Tahsildar, Patiala for recovery and necessary action, dated 8/2.

(Sd) Deputy Commissioner, Patiala.

The Tahsildar started proceedings for realising the amount; the identical objections were again raised by Om Parkash. These were rejected by the Tahsildar on 14-5-1951. In this application also the record does not show that the Tahsildar was functioning as a Magistrate. The Additional District Magistrate was approached in revision against this order as well.

The learned Additional District Magistrate by a detailed order referred both these petitions to this Court u/s 438, Criminal P.C. He was of the opinion that the Tahsildar, for various reasons, had no jurisdiction to entertain or take action on the applications and recommended that the orders be quashed. One of these of course, is that a Tahsildar has no jurisdiction to take action u/s 81 of the Punjab Municipal Act. There cannot possibly be any dispute on that point. Section 81 of the Act provides that a Magistrate haying jurisdiction within the limits of the Municipal Committee or at the place where the defaulter resides, may recover the amount claimable by a Committee on an application presented to him for that purpose. Shri Daya Sarup, the learned Counsel for the respondent has frankly conceded that Shri Piare Lal, whose orders are in question, acting as a Tahsildar had no jurisdiction to proceed in the matter, but he contends that Shri Plare Lal was also invested with the powers of a Magistrate, Second Class, and had jurisdiction within the limits of the Committee. The argument is that the Tahsildar should be taken to have acted as a Magistrate, although he had missed to express that he was acting in that capacity. I do not think there is any substance in this contention. The manner in which the proceedings started and the subsequent orders which were made thereon, leave no doubt that Shri Piare Lal never thought of acting as a Magistrate and that he was all along acting as a Tahsildar. So far as the second application dated 6-2-1951 is concerned, the matter is so very clear. The application was addressed to the Deputy Commissioner and was presented to, and entertained by him. He sent it, in the capacity of a Deputy Commissioner, to the Tahsildar for necessary action. The latter must ordinarily be presumed to have proceeded on it as such, unless he had stated that he was exercising his Magisterial powers. The mere fact that both offices were held by the same individual does not lead to the inference that he acted in a capacity different from the one in which the papers had been sent to him by his immediate officer. It may be repeated that the Deputy Commissioner had ordered the Tahsildar to take action and proceed in the matter. If Shri Piare Lal was to act in a different capacity, he must have expressed it in so many words, or at least given his designation as a Magistrate while passing orders. No such thing was done and there is nothing to indicate that he acted in the capacity of a Magistrate. Again, the Deputy Commissioner to whom the two applications were presented had no jurisdiction to entertain or pass any orders on them. He may also have been the District Magistrate, but he did not pass the orders in that capacity. The orders which have been reproduced above, make it clear that he passed them as a Deputy Commissioner and not as a District Magistrate. The matter has not been left to conjectures as to the capacity in which he did it.

With the exception that the first application was not addressed to any particular officer all these objections apply with equal force to that application as well. That was also sent by the Deputy Commissioner to the Tahsildar, and the latter must be presumed to have proceeded on it in that capacity. I would, therefore, hold that the two orders under revision were passed without jurisdiction and must be set aside.

In view of my finding that the officer concerned was not legally competent to pass the orders, I should not go into the other objection of the petitioner, which is to the effect that the amount was not recoverable under the Act and hence Section 81 of the Municipal Act had no application. This is a point that shall have to be decided, if raised, when and if proper proceedings are started before a competent authority.

In the result the references are accepted and the orders of the Tahsildar, dated 31-1-1951 and 14-5-1951 set aside.