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360 paragraphs · 7,907 wordsSengottuvelan, J.—Criminal Miscellaneous Petition Nos. 5521, 5523, 5525, 5970, 5972 and 5974 are filed by the Banque Francise Du
Commerce Exteriour, 21 Boulevard Hansaman, Paris, France, hereinafter referred to as the Bank under S.482, Crl. P.C. challenging the legality
and correctness of the orders passed by the 16th Metropolitan Magistrate, George Town, Madras in C.C. Nos. 160, 161, 162, 440, 441 and
480 of 1985 on his file. Criminal Miscellaneous Petition No. 5611 of 1985 is filed by the Mehrine Marine Movements Pvt. Ltd., hereinafter
referred to as the Company, for a direction to the Collector of Madras to accept the tenders. Criminal Misc. Petition Nos. 5267 and 5268 of
1985 are filed by M/s. Hotel Sudarson Internationa], Egmore, Madras-8, by its Manager, N.S. Mathur, hereinafter referred to as the Hotel, to
quash the order of the 16th Metropolitan Magistrate, George Town, Madras, in C.C. No. 160 of 1985, dated 18.5.1985, in so far as it relates to
the rejection of the claim of the Hotel towards boarding and lodging expenses of the seamen and crew members of the ship M.V. Sea Heron and
for direction to the Collector of Madras to deduct the boarding and lodging expenses of the seamen and Master of ship M.V. Sea Haron from the
sale proceeds of the ship M.V. Sea Haron. Criminal Misc. Petition No. 1817 and 5873 of 1985 are filed by the intending tenderers for permission
to submit their tenders and for a direction to the Collector of Madras to receive their tenders. Criminal Misc. Petition No. 5951 of 1985 is filed by
Lemos Dismantis, hereinafter referred to as the Master, for permission to make his submissions in the above proceedings.
The facts of the case are briefly as follows:--The vessel M.V. Sea Heron a Panama based vessel reached Madras Harbour on 8.1.1985. Due
to the failure on the part of the owner of the vessel to pay the salary of crew members and to provide sufficient funds to meet the immediate
requirements of the maintenance of the vessel, the crew members filed C.C. Nos. 160, 161, 162, 440, 441 and 480 of 1985, under Ss. 145 and
146 of the Merchant Shipping Act, 1958, hereinafter referred to as the Act, on the file of the 16th Metropolitan Magistrate, George Town,
Madras. The Bank who had advanced amounts on mortgage of the said vessel filed three applications in C.C. Nos. 160 to 162 of 1985, before
the Magistrate for impleading the said bank as a party respondent. All the three impleading applications (not numbered) were dismissed by the
learned Magistrate on the following grounds:
The banker who has advanced money to the owners of the ship has filed a petition to implead himself. The proceedings pending here are of a
summary nature and the only point to be determined is whether the wages is due to the crew as claimed by them. Any other matter other than the
payment of wages is beyond this Court''s jurisdiction. Further there is no provision in the Code of Criminal Procedure for impleading the parties. In
the circumstances the petition filed by the Banker is dismissed.
Having dismissal the impleading applications the learned Magistrate proceeded to adjudicate the reclaims of the crew members and passed an
order awarding various amounts as detailed below:
C.C. Petitioners Amount Rupees
No. & their U.S.
designationDollars
160/85 Stoupies 17153 2,44,348
staves.
Chief
Engineer
161/85 Eletheriadis9408 1,33,712
Vasilies III
Engineer
162/85 Kandilieties11178 1,56,492
Panagietis
Chief
Officer
440/85 Other 52852.096,60,650.11
Officers 7.48,772.00
14,09,423.11
441/85 Subordinate 2,16,220
Officers
480/85 Master of 77280 26,67,070.30
the ship
The learned Magistrate based his judgment on the admission made by the Master who for all purposes represents the owner of the vessel. The
Master specifically stated before the lower Court that he is not denying the liability and that he did not have the money to pay the wages.
Thereafter in view of the statement of the Master that he is not in a position to pay the amounts, awarded notices were issued under S.445 of
the Act for distress and sale of the vessel, and notices were also issued to the Consulate General of Panama at Calcutta, in respect of the
proceedings of distress and sale. According to facts mentioned in the order of the learned Magistrate, on 25.4.1985 the owners of the ship
appeared through their counsel Messrs. King & Patridge and sought for an adjournment promising to settle the matter and the case was adjourned
to 30.4.1985 and on that date the owner''s counsel appeared and sought further time and the case was adjourned to 7.5.1985. On 7.5.1985 the
counsel for the ship owner appeared and requested further time. The matter was once again posted to 14.5.1985 as a last chance for them to
make the payment. Inspite of the undertaking the owners did not pay the amount. The learned Magistrate on a perusal of the pleadings and the
documents and also the undertaking of the Master found that the amounts claimed as above stated are payable to the members of the crew and
that the ship owners are liable to pay the said amount On an application by the crew members the learned Magistrate appointed the Collector of
Madras as the Receiver to sell the vessel in order to pay the claim of the members of the crew. The Collector in his turn appointed the Company
as its agent for the purpose of effecting the sale of the ship and also directed the Company to incur the necessary expenditure the maintenance of
the ship, crew members and for the sale of the ship. In pursuance of the orders of the learned Magistrate the Collector advertised in the
newspapers for the sale of the ship by calling for tenders. Several tenderers had submitted their tenders and before the tenders could be opened
the Bank filed Crl.M.P. Nos. 5522, 5524, 5526 of 1985 and obtained stay of further proceedings in the matter. On a subsequent representation!
this Court directed the Collector to keep the tenders pending.
In the first instance, in order to have an effective adjudication in the matter, the Master of the vessel is permitted to put forth his contentions in
these proceedings. Hence Crl M.P. No. 5951 of 1985 is ordered.
On the pleas raised by the Bank, Company, Hotel, intending tenderers and the Master of the vessel the following points arise for determination
in these petitions;
Whether the Bank has the locus standi to be impleaded in the proceedings before the learned Magistrate started by the crew members for the
recovery of their wages?
Whether the proceedings before the learned Magistrate is a criminal proceeding to which the provisions of the Code of Criminal Procedure are
applicable?
Whether an application under S.482, Crl P.C. questioning the decision of the learned Magistrate refusing to implead the Bank is sustainable in
law?
Whether the Hotel is entitled to any relief in respect of the boarding and lodging charges of the crew members?
Whether the subsequent tenderers are entitled to have their tenders considered along with the other tenders?
The first point to be considered is whether the Bank has got the locus standi to make its representation in the proceedings before the learned
Magistrate. S.145 or the Act provides for a summary proceedings for the recovery of the wages of the drew members and the said section is as
follows:
(1) A Seaman or apprentice or a person duly authorised on his behalf may, as soon as any wages due to him become payable, apply to such
magistrate exercising jurisdiction in or near the place at which his service has terminated or at which he has been discharged, or at which any
person upon whom the claim is made is or resides and the magistrate shall try the case in summary way and the order made by such magistrate in
the matter shall be final.
(2) An application under sub-S.(1) may also be made by any officer authorised by the Central Government in this behalf by general or special
order.
S.146 of the Act provides that the proceedings for the recovery of wages shall not be instituted in a civil Court except where the owner of the ship
has been declared insolvent or the ship is under arrest or sold by the authority of any Court or where a Metropolitan Magistrate refers a claim to
the Court. The case of the crew members is that the mortgagee of the ship viz. the Bank, has no locus standi to get itself impleaded in the
proceedings for the recovery of wages and the only remedy available to the Bank is to approach the Admiralty Court for passing a decree on the
mortgage and the Court exercising Admiralty jurisdiction after passing a decree may also direct the ship to be sold in execution of the decree as
per S.51 of the Act. The mortgagee/Bank except to initiate the proceedings under S.51 of the Act has no other rights and hence the Bank cannot
be impleaded as a party to the proceedings. On the other hand the contention of the mortgagee/Bank is that the claims of the crew members are
imaginary and if such imaginary claim is allowed there will be nothing left to the Bank to whom a sum of 15,78,823.39 dollars are due under the
mortgage. The Bank also produced a photostat copy of the deed of mortgage of the ship in its favour. The further contention of the crew members
is that the proceedings contemplated under S.145 of the Act is a summary procedure in which the Bank is not entitled to be heard. In view of the
photostat copy of the mortgage deed produced by the Bank prima facie it can be takes that the Bank has advanced amount on mortgage of the
ship. As a mortgagee the Bank is entitled to certain rights in law. According to S.65(b) of the Transfer of Property. Act in the absence of a
contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee that the mortgagor will defend, or if, the mortgagee be in
possession of the mortgaged property, enable him to defend, the mortgagor''s title thereto. If the mortgagor fails to defend the title to the suit
property then every one who has a vested right as a mortgagee has the right to do all that is necessary to defend the mortgagor''s title to the suit
property. In such a case the mortgagee may even be entitled to the expenses incurred in this regard. In this case the allegation of the Bank is that
imaginary claim for a very large amount had been put forward by the crew members before the learned Magistrate who accepted the same without
insisting upon the proof as to how the crew members are entitled to the said amount. The Master of the ship represented the owners in the
proceedings before the learned Magistrate and consented to an order being passed on the basis of the claim made by the crew members. It is also
to be noted that one of the crew members the petitioner in C.M.P. 160 of 1985 on the file of the Lover Court had also claimed wages, according
to the Bank, on there different heads for a very large amount. Hence the Master of the ship in this case is in the position of a claimant and he
cannot be expected to defend the rights of the mortgagor. Since the Master of the vessel is also a claimant for wages he will not be in a position to
protect the interest of the owner of the vessel in the above proceedings. In fact it is the allegation of the Bank that the claim of the Master of the
ship for wages and disbursements for maintenance etc., is exaggerated. The only safeguard available against such exaggerated claims in the Act is
the provision relating to service of notice on the Embassy of the country of the owner of the vessel. The underlying idea behind the notice to the
Embassy is the concerned Embassy will take steps to intimate the owner so that the owner can take steps to safeguard the vessel. In this case the
learned Magistrate in his order states that the concerned Embassy has been served with notice. The details of the said service are not available in
the records. But Mr. Sriramulu, learned Advocate for the Bank, states that in some matters the claim had been allowed within a few days of filing
the application and as such there is no possibility of any notice being given to the Embassy of the country to which the owner of the vessel bet on
is, which is situate at Calcutta. Considering the several circumstances it can as well be taken that the owner of the vessel was not afforded sufficient
opportunity to contest the claim in C.M.P. No. 480 of 1945, in which the claim is to the tune of about Rs. 27 lakhs. Mr. Sriramulu, learned
Advocate for the Bank, states that the owner of the vessel had not been notified about the above said huge claims and hence the owner did not
also make arrangements for contesting the claims by the several crew members in the proceedings before the learned Mi gist rate. The Master of
the ship who is also one of the claimants is not in a position to safeguard the interest of the owner since he has got an interest adverse to the owner
in these proceedings. Hence under the circumstances the principles of natural justice will enable the Bank, who is the mortgagee having advanced a
large amount over the ship, to take all steps to safeguard the interest of the mortgagor so as to enable him to recover the mortgage money. The
wholesome principle recognised in the Transfer of Property Act that a mortgagee is entitled to safeguard the hypotheca by taking appropriate steps
is based upon equity. In proceedings under the Merchant Shipping Act, which are proceedings in rem contingencies not provided in the Act may
occur and in such cases will have to be dealt with in accordance with principles of equity in order to see that justice is rendered. It is contended on
behalf of the members of the crew that the mortgage is created outside India and the provision of the Transfer of Property Act is not applicable.
But the equitable doctrine underlying the Act will have to be imported to meet the ends of justice. The mortgagee without being a spectator to the
mortgage property being lost, is at liberty to take all steps to see that the mortgaged property is safeguarded so as to ensure the mortgage amount
due to him. Under the circumstances the Bank, the mortgagee of the vessel, has got every right to tike part in the proceedings before the learned
Magistrate and put forth his contentions with reference to the claims and the learned Magistrate after taking into consideration the claims and the
contentions of the Mortgagee can pass the orders relating to the wages claimed by the members of the crew.
Considering the wholesome provisions contained in the Transfer of Property Act and the general principles of equity and natural justice the only
conclusion that can be arrived at in so far as the question relating to the locus standi of the Bank is that the Bank is entitled to represent its care
before the Magistrate and the Magistrate is bound to consider its representation and then only come to a conclusion regarding the claims put
forward by the members of the crew. It is contended on behalf of the crew members that the rights of the Bank as the mortgagee are protected by
S. 51 of the Act which provides for filing a suit before the High Court and obtain a decree and have the ship sold in execution of the decree. S. 51
of the Merchant Shipping Act, 1958 reads as follows :
(1) A registered mortgagee of a ship or share shall be entitled to recover the amount due under the mortgage in the High Court, and when
passing a deree or thereafter the High Court may direct that the mortgaged ship or share be sold in execution of the decree.
(2) Subject to the provisions of sub-S. (1), no such mortgagee shall merely by virtue of the mortgage be entitled to sell or otherwise dispose of the
mortgaged ship or share.
Merely because there is a provision in S. 51, it cannot be said that the mortgage/bank is to remain idle when by me 403 of certain other
proceedings the ship itself is placed beyond the reach of the mortgagee/Bank. No doubt the summary procedure for recovery of the wages of the
crew members is provided for in S. 145 of the. Act by an application to any Judicial Magistrate of First Class or any Metropolitan Magistrate, as
the case maybe. Such proceedings are intended to enable the crew members to recover the wages with all possible, quickness. But the provision in
S.145 of the Act cannot come in the way of the mortgagee/ Bank taking all steps available to it in law to safeguard the mortgage property viz. the
so p, so as to enable it to recover the mortgage amount. Hence the only conclusion that can be arrived at in respect of the first point is that the
Bank as got the locus standi to get itself impleaded in the proceedings before the Magistrate and make its representation regarding the claims
made.
The second point that arise for decision in this case is whether in respect of the proceedings before the Magistrate the provision! of the Code of
Criminal procedure are applicable so as to give a right to the Bank to fife an application under S. 482. Crl.P.C. The contention of Mr. Sriramulu,
Learned Counsel for the Bank, is that the proceedings before the Magistrate are criminal proceedings to which the provisions of the Code of
Criminal Procedure apply and as such the Bank has got every right to file an application under S.482, Crl.P.C. before this Court. In support of this
contention reliance is placed upon the case reported in Steel Industrials Kerala Ltd. Vs. Capt. S.M. Rebello and Others, where the Supreme
Court termed the Court dealing with the proceedings under S.145 of the Merchant Shipping Act as a criminal Court. In paragraph 2 of the
judgment extracted below, the Supreme Courts refers the Court which entertains the proceedings under S.145 of the Act as a criminal Court. Para
2 reads as follows:
The facts of the case lie within a very narrow compass. The appeal by special leave has been filed by the appellant-company contending that the
respondent was not entitled in law to get full compensation for one year as was granted by the High Court for premature termination of his
services. The detailed facts have been"" given by the High Court and the criminal court and it is not necessary to repeat the same.
Relying on the terminology used by the Supreme Court it is contended on behalf of the Bank that the Court enquiring into the matters relating to
S.145 of the Act is a criminal Court and as such the provisions of the Code of Criminal Procedure are applicable. The contention of Mr.
Vanamamalai, Learned Counsel for the crew members, it that in the above case before the Supreme Court the concerned persons submitted to the
jurisdiction of the criminal Court and had not questioned the same and as such no inference can be drawn from the terminology adopted by the
Supreme Court, On a persual of the judgment it is seen that no contention relating to the applicability of the provisions; of the Code of the Criminal
Procedure was, put for ward in that case and hence merely from the terminology used by the Supreme Court it is not possible to come to a
conclusion. Hence a conclusion can be arrived at only after examining how the question was dealt with by the Supreme Court and the other High
Courts in several cases in which the nature of the proceedings were in question.
Before examining the decisions, it will be useful to consider the relevant ''provisions of the Code of Criminal Procedure relating to the
applicability of the Code to similar proceedings before the Magistrate. S.4, Crl.P.C. deals with the trial of offences under the Indian Penal Code
and other laws; and the same is as follows:
Trial of, offences under the Indian Penal Code and other laws:-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried, rand otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into tried, and otherwise dealt with according to that same provisions, but
subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into trying or otherwise dealing with
such offences.
According to S.4(l), Grl.P.C. all offences under the Indian Penal Code shall be investigated and tried according to the provisions of the Code of
Criminal Procedure. According to S.4(2), Crl.P.C. all offences under any other law shall be investigated and tried according to the provisions of
the Code of Criminal Procedure. But if any provision is made in the special law to regulate its proceeding or by any separate enactment for
regulation of the proceedings under the special law is provided, then the procedure laid down will be applicable. S.5, Crl. P.O. lays down that in
case of special law or local law the procedure prescribed in such special law or local law will apply and the provisions of the Code will not be
applicable to such cases. S.5, Crl.P.C. is as follows:
Saving:--Nothing contained in this Code shall, in the absence of a specific provisions to the contrary, affect any special or local law for the time
being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in
force.
The first question to be considered is whether the special Act viz.; the Merchant Shipping Act, 1958, under the provisions of which the above
proceedings had been started lays down any procedure regarding the conduct of the trial of such cases. Apart from mentioning in S. 145 that such
proceedings are to be instituted before any Judicial Magistrate of First Class or any Metropolitan Magistrate, as the case may be, and calling the
proceedings as summary proceedings for wages, the Special Act does not lay down any proceedure with reference to the enquiry to be
conducted. In the case reported in Mirza Iqbal Hussain through Askari Begum Vs. State of Uttar Pradesh, the Supreme Court had occasion to
consider the procedure to be adopted in respect of the proceedings under the Prevention of Corruption Act (2 of 1947) where the person accused
of an offence under the provisions of the said Act was found guilty for having in possession of property disproportionate to the known sources of
income. In that case the Supreme Court held that the Special Judge has jurisdiction to pass an order of confiscation of property which formed the
subject-matter of the charge, under S. 452, Crl. P.C., which enables the criminal Court to make an order for the disposal of the property by
confiscation. The Supreme Court negatived the contention that the Code of Criminal Procedure is not applicable to the proceedings under the
Prevention of Corruption Act (2 of 1947) on the ground that since the Prevention of Corruption Act being totally silent on the question of
confiscation, the provisions of the Code of Criminal Procedure will apply under S.4(2), Crl. P.C. The relevant passage is as follows :
The provision of Corruption Act being totally silent on the question of confiscation, the provisions of the Cods of Criminal Procedure would apply
in their full force, with the result that the Court trying an offence under the Prevention of Corruption Act would have the power to pass an order of
confiscation by reason of the provisions contained in S.452 of the Code. The order of confiscation cannot, therefore, be said to be without
jurisdiction.
In the case reported in Srinivasa Reddiar and Others Vs. P. Krishnaswami Reddiar and Others, , a Bench of this High Court had occasion to deal
with the question of applicability of the provisions of the Code of Criminal Procedure to a proceeding under S. 87 of the then Madras Hindu
Religious and Charitable Endowment Act (XIX of 1951) in which a provision was made for delivery of the properties belonging to the temple to
the trustee appointed by the appropriate authority. In that case the contention that CI. 15 of the Letters Patent is applicable and that only a Letters
Patent Appeal can be maintained, was negatived by the Bench on the ground that the order which was the subject-matter of the appeal was
passed either in the exercise of criminal Jurisdiction, or in the exercise of the power of superintendance under Art.227 of the Constitution of India
and falls in the catogory of, other than a ""judgment"" passed in the exercise of appellate jurisdiction by the lover Court which are expressly excepted
in Cl. 15 of the Letters Patent and against which an appeal would not lie. The principle regarding the application of Ss. 4 and 5, Crl. P.C., that can
be ascertained from the above said two decisions are as follows :
In proceedings in respect of special enactments before the Criminal Courts, if no procedure is laid down in the special enactment then the
provisions of the Code of Criminal Procedure are applicable for such proceedings;
Even, in cases where a procedure is contemplated in the special Act yet if no provision is made in respect of certain matters on which the
criminal Court can exercise powers, in the matter of exercise of such powers the provisions of the Code of Criminal Procedure are applicable.
Mr. Vanamamalai, Learned Counsel for the crew members, relies upon the following decisions in support of his argument that the provisions ef
the Code of Criminal Procedure cannot be applied to the abovesaid proceedings. In the ease reported in Jafar Ali and Others Vs. James Finlay
and Co., a Division Bench of the Colcutta High Court observed that a complaint under the Merchant Shipping Act has to be inquired into in
accordance with the provisions of that Act and cannot be dismissed under the provisions of S. 203 of the Code of Criminal Procedure. The facts
of the case are not fully set out in the decision and as such it is not possible to ascertain the circumstance under which the said decision was
rendered. The only fact that is evident is that the Magistrate seems to have dismissed the complaint under S.203, Crl. P.C., and the same is set
aside by the Calcutta High Court on the ground that the proceedings under the Merchant Shipping Act will have to be enquired into in accordance
with the provisions contained in that Act and the same cannot be dismissed under the provisions of S. 203, Crl. P.C. Perhaps it was a case of
claim for wages under S. 145 of the Act and in such a case even if the complainant is absent the same will have to be decided on the material on
record since the proceeding is a summary proceeding and intended to alloviate the sufferings of the seamen. This decision cannot be said to lay
down any general proposition of law relating to the procedure that has to be applied in respect of the proceedings under the Merchant Shipping
Act, 1958. In the ease reported in Anthony Francis Noronha Vs. Gladstone Wyllie and Co. Ltd., a Division Bench of the Calcutta High Court
observed that the Merchant Shipping Act does not specify the form which summary proceedings under S. 63 should take. Where the Magistrate
decides a case on the pleadings of the parties after hearing argument and without objection at the time of hearing, the High Court cannot interfere in
revision. The Division Bench also observed that under S. 110 of the Act the Magistrate acting under S 63 could determine the question of
forfeiture or deduction from the wages of a seaman. Since no objection had been put forward the Calcutta High Court held that the conclusion
cannot be interfered with in revision. In the above case no plea was put forward challenging the claim. Under the circumstances the Bench of the
Calcutta High Court rightly held that the conclusion cannot to interferred with in revision. This decision cannot be said to bean authority for the
proposition that in the matter of summary proceedings under the Merchant Shipping Act the provisions of Criminal Procedure Code are not
applicable. The next case relied upon by the crew members is the case reported in Sukhdev Singh v. Teja Singh AIR 1954 S.C. 186, where the
Supreme Court held that the power of the High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction
which is inherent in all Courts of Record. S.1(2), Crl. P.C, expressly excludes special jurisdictions from its scope. Hence the Code of Criminal
Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own
procedure. All that is necessary is that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to
defend himself. Contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Records. The words
any other law"" in S. 5 of the Criminal Procedure Code do not cover contempt of a kind punishable summarily by the High Courts. In the course of
the judgment the '' Supreme Court observed that in respect of proceedings under the Contempt of Courts Act a special practice and procedure
has been laid down and it will be inappropriate to apply the Code of Criminal Procedure. But in the Merchant Shipping Act no practice and
procedure has been laid down and hence the principle laid down in the above case cannot be applied to the present case. The principle laid down
in the case reported in Mirza Iqbal Hussain through Askari Begum Vs. State of Uttar Pradesh, , that the provisions of the Code of Criminal
Procedure apply to proceedings under the Special Act Under S 4(2), Crl. P.C. where no specific provision is laid down in the Special Act will
apply to the present case since no procedure has been laid down in respect of the proceedings under S. 145 of the Merchant Shipping Act.
The second contention relating to the question of applicability of the provisions of the Code of Criminal Procedure is based on the plea that the
Magistrate of the First Class or the Metropolitan Magistrate, as the cast may be, acting under S.145 of the Act is a persona designata and as such
the provisions in the Code of Criminal Procedure, cannot be applied to the proceedings under S.145 of the Act. Mr. Vanamamalai, Learned
Counsel for the crew members, relied upon the judgment of the Supreme Court reported in The Dargah Committee, Ajmer Vs. State of Rajasthan,
, where the Supreme Court held that the Magistrate having jurisdiction referred to in S.234 of the Ajmer Merwara Municipalities Regulation (6 of
1925) is a persona designata. S.153 of the said Act confers power on the Municipality to order removal or repair of buildings which may be found
in a dangerous state. Under this section the Committee may by notice require the owner of the building, wall or structure to remove the same
forthwith or cauce such repairs as the Committee may consider necessary for the public safety. This section also empowers the Committee to take
at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger. If the owner on whom a notice is
served under S. 133 does not comply with the requisition, the Committee is empowered to cause repairs to be made after six hours'' notice to the
owner under S.220. S.220 empowers the Committee to recover the cost of the work done from the person in default. There is also a provision in
the Regulation that where any money recoverable by the Committee under this section is payable by the owner of the property, it shall be charged
thereon and shall be recoverable as if it were a tax levied by the Committee on the property. The Regulation also provides that any tax claimable or
recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be recovered on
application to Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is
payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate s jurisdiction belonging
to such person. The proviso to the above section prescribes that, nothing in this section shall prevent the Committee at its discretion from suing for
the amount payable in any competent Civil Court. According to the Supreme Court the object of making an application to the Magistrate is to
obtain an order from the Magistrate directing the recovery of the tax claimable or recoverable by distress and sale of any movable property
belonging to the defaulter. The Supreme Court observed in the course of the judgment as follows:
Now looking at S.234 it is clear that the proceedings initiated before a Magistrate are not more than recovery proceedings. All questions which
may legitimately be raised against the validity of the notice served under S.153 or against the validity of the claim made by the Committee under
S.222 can and ought to be raised in an appeal under S.93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all these
points are concluded and can no more be raised in proceedings under $.234. That is why the nature of the enquiry contemplated by S.234 is very
limited and it prima facie partakes of the character of a ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the
Magistrate who entertains the application is an inferior criminal court. The claim made before him is for the recovery of a tax and the order prayed
for is for the recovery of the tax by distress and sale of the movable property of the defaulter. If at all, this would at best be a proceeding of a civil
nature and not criminal. That is why, we think, whatever may be the character of the proceeding, whether it is purely ministerial or judicial or quasi-
judicial 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 a person a designated and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure.
According to S.234 of the Ajmer Merwara Municipalities Regulation (6 of 1925)a Magistrate simply executes or collects the amount levied by the
Municipal Committee and his function cannot amount to a judicial function. That is the reason why the Supreme Court observed that a duty it cast
upon the Magistrate as persona designata to do a particular act. But the proceeding under S. 145 of the Merchant Shipping Act in a judicial
proceeding where the concerned Magistrate will have to decide the question. In the proceeding under S.145 of the Act the Magistrate will have to
entertain the claim hold a summary enquiry and then come to a conclusion. Tree duty cast upon the First Class Magistrate or the Metropolitan
Magistrate under S.145 of the Act is a judicial function and hence the principle laid down in the above decision cannot be applied to the facts of
the present case.
National Telephone Company Ltd. v. Postmaster Central 1913 A.C. 546. Lord Parker observed as follows:
Where by statute matters are referred to the determination of a Court of Record with us further provision, the necessary implication is, I think, that
the Court will determine the matters, as a Court. Its jurisdiction, is enlarged but all the incidents of such jurisdiction, including the right of appeal
from its decision, remain the same.
In the case reported in Parthasarathi Naida v. Koteswara Rao AIR 1924 Mad 561, a Full Bench of this Court had considered a similar provision
viz. S.199 of the Madras Local Boards Act, 1920 S. 199(2) (c) of the said Act read as follows:
No election of a member or of a President of a District, Taluq. or Union Board shall be called in question except by an election petition presented
in accordance with these rules, to the District or Subordinate Judge having jurisdiction.
The Full Bench of the Madras High Court after referring the judgment of Lord Parker cited above, on the point and held that a reference to a
Judge can only be referred to him as a Judge in the exercise of ordinary jurisdiction and hence the District Judge to whom the election disputes are
referred U acting as a District Judge and not as a persona designata. In the case reported in Bat hula Krishna Brahman v. Daram Chenchi Reddy
1959 M.L.J. (Crl.) 230 a Bench of the Andhra Pradesh High Court held that a Magistrate performing the functions under S.87 of the Hindu
Religions and Charitable Endowments Act (19 of 1951) whereby any Magistrate of First Class having, jurisdiction is empowered to order the
delivery of possession of temple property to a person lawfully appointed as trustee, would act as a Court and not as persona designata. To the
same effect is the decision of a Envision Bench of this Court reported in V. Sambandam and Another Vs. S.T.S.V. Kandasami Padayachi and
Others, , where it has been observed as follows:
It is correct to processed upon the view, as'' a general proposition of law, that where a duty of a particular character is cast upon an. established
Court, it imports that the ordinary incidents of the procedure of that Court are to attach.
The Division Bench held that a revision lies against an order of the Magistrate of First Class acting under S.101 of the Act 22 of 1959, a similar
provision like S.87 of Act 19 of 1951. Considering the principles laid down in the above decisions rendered in respect of enactments where a
similar provision is made there is no difficulty in coming to the conclusion that the Magistrate acting under S.145 of the Merchant Shipping Act,
1958 exercises judicial function and not a persona designata as contended by the members of the erew. On a consideration of the entire
circumstances the contention of the crew members that the provisions of the Code of Criminal Procedure are not applicable to this case, will have
to be negatived on the principles laid down in the above decisions. Under the circumstances there is no difficulty in coming to the conclusion that
the proceedings under S 145 of the Merchant Shipping Act, 1958 are criminal proceedings to which the provisions of the Code of Criminal
Procedure apply.
The next point to be dealt with in these petitions is whether an application under S. 482, Crl. P.C., questioning the decision of the learned
Magistrate refusing to implead the Bank is sustainable in law. According to the principles of equity and natural justice the party adversely affected
should be heard. In the case reported in Sowmithri Vishnu v. Union of India 1985 Crl. L.J. 1302, the Supreme Court observed as follows :
There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to
be adversely affected, directly and immediately, by the decision of the Court.
In the case reported in Bhagwant Singh Vs. Commissioner of Police and Another, , the Supreme Court held that in a criminal proceeding the
complainant who instituted the F.I.R., or the injured person or any relative of the deceased who is not an informant, can make a representation to
the Court. In the case reported in Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Others, , the Supreme Court observed as follows:
The High Court should exercise suo motu power of revision and could not allow to perpetuate illegality and miscarriage of justice.
In this case, the case of the Bank is that according to the decision reported in Steel Industrials Kerala Ltd. Vs. Capt. S.M. Rebello and Others, ,
the Master of the ship is entitled to only three months'' wages and in this case the Master has claimed more than the wages to which he is entitled
and this question will have to be gone into. Allowing the decision of the learned Magistrate will amount to doing injustice to the Bank who has got a
lawful claim over the ship as a mortgagee. Learned Advocate for the crew members relied upon the ease reported in Alamohandas v State of
West Bengal 1970 M.L.J (Crl.) 369, where the Supreme Court held that the High Court has power to interfere in revision only where a substantial
question of law arises and there cannot be a re-appraisal of the evidence. But in this case the learned Magistrate has not considered the merits of
the claim in the proper perspective in order to arrive at a conclusion on the question whether the claim is justifiable under the provisions of the
Merchant Shipping Act and bas not given reasons for allowing the claim in toto. A perusal of the order of the learned Magistrate discloses that his
conclusion is not based upon any documentary or oral evidence. Under the circumstances the conclusion of the learned Magistrate cannot be said
to be a lawful conclusion arrived at under S. 145 of the Merchant Shipping Act. Hence on point No. 3 I held that the application under S.482, Crl.
P.C. is maintainable to question the decision of the learned Magistrate refusing to implead the Bank as a party to the proceedings.
Yet another argument raised by the crew members is that the applications to implead were filed only in three cases and in the rest of the two
cases no impleading petitions bas been filed and hence the two cases in which impleading petitions had not been filed cannot be interfered with in
the application filed under S.482, Crl. P.C. But criminal miscellaneous petition hive been filed in those cases also challenging the orders of the
Magistrate and relief can be given in those applications to meet the ends of justice.
The fourth point that arises for determination in this case relates to the claim made by the Hotel which afforded boarding and lodging facilities
to the crew members. The learned Magistrate held that there is no provision by which amounts can be directed to be paid to the Hotel. The
proceedings under the Merchant Shipping Act, 1958 are in the nature of proceedings in rem and as such all lawful claims are bound to be
considered. If the Hotel establishes the contract by which it entertained the crew members and afforded boarding and loading facilities either
directly or through agents then the Hotel is entitled to have its claim considered by the Magistrate.
The last question to be decided is with reference to the tenderers who could not submit their tenders on account of the stay order passed by
this Court. This question does not arise for consideration in view of the conclusion arrived at an the earlier points.
On the orders of the Metropolitan Magistrate appointing the Collector of Madras as Receiver to sell the vessel, the Collector in turn appointed
the Company as his agent to make the necessary advertisement calling for tenders and for maintaining the members of the crew and the vessel The
said company had been incurring expenses regarding he maintenance of the vessel and the members of the crew. Such lawful expenditure of the
Company will have to be met from out of the proceeds of the ship just as in the case of sales through Court to recover mortgage amounts the
expenses of sale are deducted in the first instance. Arrangements also will have to be made to maintain the ship and the crew members till the
whole matter comes to an end. The Company will continue to maintain the ship and the crew and the lawful expenditure incurred in this regard also
will come out of the proceeds of the vessel. In case the owners of vessel come forward to redeem the vessel, such expenses are payable by the
owner. Any other expenses incurred under the authorisation of the Collector for maintenance of the crew members and the ship shall also come out
of the proceeds off the ship.
Since the order of the learned Magistrate under S. 145 of the Act itself is set aside the subsequent order passed for distress and sale for non-
payment of the amount ordered under S 145 of the Act is also consequently set aside. The learned Magistrate after farther enquiry, after hearing
the parties including the Bank, will decide the amount and direct the payment of the amount within a prescribed date and if the amount is not paid
within that date then the Magistrate is at liberty to order the sale of the vessel under S. 415 of the Act for realising the amount ordered to be paid.
For that purpose the Magistrate is at liberty to appoint the Collector as a Receiver to call for tenders regarding the sale of the vessel. Since further
proceedings will have to be started for the sale of the vessel, if need be, Crl.M.P. No. 3611 of 1985, filed by the Mehrine Marine Movements Pvt.
Ltd., for a direction to the Collector of Madras to accept the tenders, will have to be dismissed. For the same reasons no orders are necessary in
Crl. M.P. Nos. 5817 and 5873 of 1985, filed by the intending tenderers, and the same will have to be dismissed with liberty to submit their tenders
in case there is a fresh invitation for tenders. The tenders received by the Collector are directed to be returned to the tenderers.
In the result Crl.M.P. Nos. 5521, 5523, 5525, 5970, 5972, 5974, 5267, 5268 and 5951 of 1985 are allowed, the order of the learned
Magistrate is set aside and the matter is remitted back to the learned Magistrate for deciding the matter afresh regarding the claim of the crew
members as well as the mortgage after hearing the representations made by the parties including the Bank and Hotel. In view of the urgency the
lower Court is directed to dispose of the matter within eight weeks from the date of receipt of the records. There will be no order as to costs.