Ganapathi Muthiriyar vs Narayanaswami Vaithiar and Others

Rajagopalan, J.—The Revenue Divisional Officer, Musiri, was also the Sub-Divisional Magistrate up to 1-1-1955, when the Judiciary was

separated from the Executive in that district. Thereafter the Revenue Divisional Officer was a First Class Magistrate ex-officio, with territorial

jurisdiction over his revenue division.

There were disputes over the possession of an extent of 7.04 acres of land, which constituted the subject-matter of M. C. No. 63 of 1954 on

the file of the Sub-Divisional Magistrate, Musiri, u/s 145, Crl. P. C. After an inquiry, the Sub-Divisional Magistrate ordered u/s 146 (1), Crl. P. C.,

that the lands should remain under attachment until a competent civil Court had determined the rights of parties to that land. Subsequently, on 6-2-

1955, the Revenue Divisional Officer, as a Magistrate of the First Class ex-officio who had jurisdiction to exercise the powers u/s 145 and Section

146, Crl. P. C., directed the appointment of the village munsif of Nerinjalagudi as receiver of these attached properties. He was directed to lease

the lands. The receiver leased the lands to Narayanaswami Vaithiar, the contesting respondent in these proceedings. The lease was for the period

ending with 31-5-1956 and the rent reserved was 187 kalams of paddy. For the subsequent year 1-6-1956 to 31-5-1957 the receiver notified

that an auction would be held for the grant of the lease. That auction was eventually held on 25-6-56 by the receiver. Ganapathi Muthiriyar, the

petitioner in these proceedings, recorded the highest bid of 275 kalams of paddy. The receiver accepted that bid and concluded the auction. On

16-7-1956 the petitioner deposited Rs. 500 with the receiver as security for the payment of the rent reserved and executed a lease deed for the

period 1-6-1956 to 31-5-1957.

On 23-7-1956 the respondent, Narayanaswami, presented a petition addressed to the Executive First Class Magistrate, Musiri, wherein he

prayed that he should be permitted to continue in possession as a lessee on the same terms as in the previous year. The respondent pointed out

that he was entitled to the protection afforded by the provisions of Madras Act XXV of 1955.

On receipt of this petition the Revenue Divisional Officer, who was the First Class Magistrate ex-officio, appears to have called for a report

from the Tahsildar. After the receipt of that report the Revenue Divisional Officer, ordered on 26-7-1956 that the lease granted by the receiver to

the petitioner Ganapathi Muthirayar should be cancelled and that the respondent Narayanaswami should be permitted to continue in possession as

lessee for the duration of Madras Act XXV of 1955, subject to the condition, that the respondent deposited Rs. 500 with the receiver,

On 26-10-1956 the petitioner Ganapathi preferred W. P. No. 1305 of 1956 under Article 226 of the Constitution for the issue of a writ of

certiorari, to set aside the order dated 26-7-1956, which ex facie showed that it had been passed by the Revenue Divisional Officer, Musiri.

When that petition came up for hearing, the contention of the respondent was that the order dated 26-7-1956 was one passed by the Revenue

Divisional Officer in his capacity as a First Class Magistrate ex-officio. It was as a Magistrate that be was in custody of the properties ordered to

be attached u/s 146 (1), Crl. P. C., through the receiver appointed by the Magistrate. The petitioner accepted my suggestion, that the more

appropriate course for him was to challenge, if he could, the validity or correctness of the order dated 26-7-1956 by invoking the revisional

jurisdiction vested in this Court by Section 435, Cri. P. C. The petitioner thereupon preferred an application which was numbered as Crl. R. C.

No. 166 of 1957 -- Crl. R. P. 169 of 1957.

These proceedings before me were on the basis, that the order dated 26-7-1958 was one passed by a First Class Magistrate. It should be

remembered that the property ordered to be attached u/s 146 (1), Crl. P. C., in M. C. No. 63 of 1954 was custodia legis, the custody being that

of the (executive) First Glass Magistrate, Musiri.

On the short ground that the petitioner had an alternative statutory remedy u/s 435, Crl. P. C., of which he subsequently availed himself, the rule

nisi in W. P. No. 1305 of 1956 will have to be discharged; that petition is dismissed. No costs.

Before I discuss the questions that arise for determination in the criminal revision case, it is desirable to set out some more facts. The respondent

preferred the application to the Magistrate on 23-7-1956 to cancel the lease granted by the receiver to the petitioner and to continue the

respondent in possession. Both these prayers were granted by the Magistrate on 26-7-1956. No notice of that application was ordered by the

Magistrate to the petitioner. Nor had the petitioner any opportunity before 26-7-1956 of making any representation to the Magistrate himself. A

report was called for from the Tahsildar, and his report was considered by the Magistrate before he passed his orders on 26-7-1956. In that

inquiry the Tahsildar appears to have examined the petitioner. The order dated 26-7-1956 was communicated to the petitioner. Subsequent to

that, on 4-8-1956, the petitioner moved the Magistrate to reconsider the order. On 10-8-1956, the Magistrate confirmed his order dated 26-7-

1956.

The petitioner alleged that on 16-7-1956, after executing the lease deed in favour of the receiver, the petitioner took possession of the lands.

The petitioner also alleged that on the termination of the prior lease period on 31-5-1956 the respondent surrendered possession of the lands to

the receiver. Both these allegations were denied by the respondent. He in his turn claimed that all along he continued to remain in possession, and

that it was he who raised the crops during this cultivation season. It is not, of course, open to me exercising revisional jurisdiction to determine

disputed questions of fact. Nor is it really necessary to discuss the truth or otherwise of these allegations of the petitioner and the respondent.

One more feature may be adverted to at this stage, though it may have no bearing ultimately on my decision in this case. After the termination

of the proceedings in M. C. No. 63 of 1954, civil suits were filed, O. S. Nos. 407, 409 and 467 of 1955 of the file of the Additional District

Munsif, Tiruchirapalli. The petitioner was a party defendant to these suits, and his claim of title to the lands, the leasehold right in which the

petitioner claimed in these proceedings, was negatived by the learned District Munsif. It was represented that an appeal has been preferred against

that decision.

The learned counsel for the respondent urged that the order dated 26-7-1956 was wholly administrative in its scope and was therefore outside

the scope of the revisional power conferred on this Court by Section 435. Crl. P. C. The learned counsel relied on the decision of Govinda

Menon, J., in Sreemanthu Rajah Y.S.R. Prasad, Zamindar of Devakota and Others Vs. Kolli Ramaswamy and Others, .

In Sreemanthu Rajah Y.S.R. Prasad, Zamindar of Devakota and Others Vs. Kolli Ramaswamy and Others, , the attachment was u/s 145(4),

Cri. P. C., but that makes little difference to the principle to apply. The Magistrate directed the Tahsildar to sell the cultivation rights of each plot

separately by public auction, but the sale lists had to be submitted to the Magistrate for his orders. The Tahsildar held the sale and submitted the

sale lists. There were complaints to the Magistrate. He set aside the sale held by the Tahsildar and directed the lease of lands to specified persons

by his order dated 17th July 1947. It was that order dated 17-7-1947 that the petitioner in that case sought to set aside by invoking the revisional

jurisdiction of the High Court. The learned Judge referred to Srinivasa Pillai v. Sathayappa Pillai, 14 Ind Gas 759 (Mad) (B) and to Nandkishore

Prasad Singh Vs. Radhakishun, , and held:

.....the Tahsildar who was directed to sell cultivation rights is only an agent of the Magistrate and the directions given to him are merely

administrative orders which can be varied by the Sub-Divisional Magistrate. As the order setting aside the sale passed by the Sub-Divisional

Magistrate is only an administrative one, no revision lies and this Court cannot interfere.

With all respect to Govinda Menon, J., I am unable to agree that this Court has no jurisdiction to revise an order passed by a Magistrate with

reference to the administration of property when that property is custodia legis. Neither of the cases relied upon by the learned Judge specifically

decided the question of jurisdiction. No doubt Sankaran Nair, J., observed in 14 Ind Cas 759 (Mad) (B).

It is an administrative order passed for the management of property which he has attached. The right to attach carries with it the right to take

necessary steps for its custody and management. It is not a judicial order concerning the petitioners."" As I understand the Judgment, the learned

Judge did not decide that the revisional jurisdiction conferred on this Court by Section 435, Crl. P. C., did not extend to such orders. If that was

what the learned Judge intended to say, I would venture, with all respect to that great Judge, to differ from him. In Nandkishore Prasad Singh Vs.

Radhakishun, , the question of jurisdiction was not really discussed or decided, though the learned Judges referred in the course of their Judgment

to 14 Ind Cas 759 (Mad) (B), only for the limited purpose, ""that the right to attach carried with it the right to take the necessary steps for its

custody and management.

In Mt. Lachmi Kuar Vs. Gajadhar Proshad and Others, , Das, J., laid down:

......it was contended that the order passed in this matter by the learned District Magistrate was not an order u/s 146 of the Code but was an

administrative order, with which this Court will not interfere. I entirely accept the view that this Court, in the exercise of its revisional jurisdiction,

should not lightly interfere with orders that may be passed by the District Magistrate for the management of the attached properties u/s 146 of the

Code, But the question is not one of want of jurisdiction but of the proper exercise of discretion by this Court,

With reference to the facts of that case the learned Judge came to the conclusion, that the order of the District Magistrate ""offended against an

elementary rule founded on the desire of the Courts to place the parties to a proceeding on a footing of absolute equality."" The order of the District

Magistrate was set aside. James, J., did not separately discuss the question of jurisdiction, but he agreed with Das, J., that the order at the District

Magistrate should be set aside,

If I may say so with respect, Das, J., laid down the correct principle. Even with reference to orders passed by a Magistrate in the course of the

administration of properties attached u/s 146 (1), Crl. P. C., the High Court has jurisdiction to interfere in revision u/s 435, Crl. P. C. But the High

Court will be extremely reluctant to exercise that revisional power in the absence of compelling reasons to set aside the order complained of. The

property is custodia legis; the administration of the property is with the Court, whether it is exercised directly or through a receiver or any other

agent. Still the orders passed for the administration of the property are orders of the Court. They are proceedings of the Court. Such proceedings

also, in my opinion, come within the scope of Section 435, Crl. P. C. The orders of the Receiver are subject to correction by the Court which has

custody of this property. The orders of the criminal Court, which is subordinate to the High Court, can be corrected by the High Court in exercise

of its revisional jurisdiction.

The learned counsel for the respondent referred to Lokenath Shah Chowdry v. Nedu Biswas, ILR 29 Cal 382 (E). In that case the lands were

ordered to be attached by the Deputy Magistrate u/s 146 of the Code. The District Magistrate ordered a reduction of rent and ordered execution

of fresh leases. The learned Judges observed:

We are required by this rule to consider whether the District Magistrate acted without jurisdiction. It is necessary also to consider whether this

Court has jurisdiction to act as a Court of revision in such a matter, and if so, whether it should do so, having regard to the circumstances of the

case."" The learned Judges held:

If, for purposes of management, the attached property had been made over to the Collector or a revenue officer, no question of jurisdiction in

regard to an order made by him could properly be raised before the High Court in its criminal jurisdiction. We may take it also that an order

passed by a Receiver would lie beyond such jurisdiction. Does the fact that the order objected to has been passed by the District Magistrate make

the matter different? We think that ho distinction can be properly made."" Independent of that the learned Judges held that the circumstances of the

case did not call for any intervention. In that case it should be remembered that proceedings sought to be revised were not proceedings of the

Court in whose custody the attached properties were. In the present case I have to deal with an order passed by a Magistrate who had custody of

the properties. Whether an order passed by a Receiver of the attached properties comes within the jurisdiction of this Court u/s 435, Cri. P. C.,

does not really arise for consideration in this case. Nor is it a case of an order passed by any one who could be considered to be acting for and on

behalf of the Court that had custody of the attached properties.

As I have said, oh the question of jurisdiction the correct principle in my opinion, if I may say so with respect, was that laid down by Das, J., in

Mt. Lachmi Kuar Vs. Gajadhar Proshad and Others, . The question is really one of discretion and not one of jurisdiction.

The next question is, do the facts in this case, call for any interference in revision. The Magistrate passed his order without himself hearing the

party likely to be affected, the petitioner, to whom the Receiver had granted a lease. That transaction was concluded by the execution of a lease

deed by the petitioner. The order of Court, which flouted the principle audi alterem partem, is liable to be set aside on that ground alone. But in this

case the plea of the learned counsel for the respondent was that that principle had not in truth been violated. There was an enquiry by the

Tahsildar, in which inquiry the petitioner had the opportunity of making his representations. True, a Court is bound to hear both sides and cannot

delegate its function to any other authority in the absence of any specific and lawful provision authorising such delegation. My first inclination was to

set aside the order of the Magistrate and to order a disposal afresh of the respondent''s petition dated 23-7-1956, after giving an opportunity to

the petitioner to make his representations. But, in view of the other factors to which the learned counsel for the respondent drew my attention, I

shall content myself with pointing out the undesirability of a Magistrate delegating to a subordinate of his the necessary enquiry to be conducted,

even if it be in the limited field of management of properties ordered to be attached u/s 146 (1), Cri. P. C.

The petitioner made his representations to the Tahsildar and those representations were apparently before the Magistrate when he passed the

order dated 26-7-1956. Subsequently the petitioner availed himself of an opportunity to move the Magistrate himself to set aside the order dated

26-6-1956. Whether the view taken by the Magistrate on the scope of the provisions of Act XXV of 1955 is correct or not does not arise for

consideration at this stage. All I am concerned with is to show that it was not a case of complete failure to give the petitioner any opportunity of

making his representations to the Magistrate.

The order was passed on 26-7-1956. The cultivation season had either commenced or was about to begin. Even the application under Article

226 of the Constitution was presented only on 26-10-1956, that is, three months after the date of the order. Meanwhile the cultivation had gone

on. The respondent would appear to be in possession of the lands now. Orders passed u/s 145 or Section 146, Cri, P. C., are only ''provisional'',

designed to secure a prevention of any possible breach of tbe peace till the rights of parties are ultimately determined by a civil Court. There has

been a determination in this case, and the District Munsif negatived the claim of title put forward by the petitioner. Of course, we are not now

concerned with any question of title but only with the question, whether the petitioner should have been allowed to obtain possession as lessee

under the lease granted by the Receiver. Even there, if the respondent was in possession, to what extent he could avail himself of the provisions of

Act XXV of 1955 to resist any claim for eviction would be another factor for consideration. Though the Receiver granted the lease upto 19-5-

1957, the cultivation season would appear to be practically over now. I am not determining now whether the Magistrate was right pr wrong in

cancelling the lease which had been concluded. My limited purpose is to decide whether in the circumstances of the case any interference in

revision at this stage is called for. I think I should not interfere.

I direct that Cri. R. C. No. 169 of 1957 be dismissed.