Murugesa Mudaliar and Others vs K.M. Ramachandran and Others

Krishnaswami Reddi, J.—These petitions have been filed under Sections 435 and 439 of the Code of Criminal Procedure against the order

of the Fifth Presidency Magistrate directing delivery of the properties to the Respondents appointed as trustees by the Deputy Commissioner of the

Hindu Religious and Charitable Endowments u/s 101 of the Hindu Religious and Charitable Endowments Act (hereinafter to be called as the Act).

A preliminary objection is taken by the Respondents to the maintainability of these petitions on the ground that the First Class Magistrate is not an

inferior criminal Court within the purview of the provisions of Sections 435 and 439 of the Code of Criminal Procedure and that the functions

exercised by him are u/s 101 of the Act either ministerial or executive functions and that he does not act in a judicial capacity, and at any rate he

exercises his jurisdiction as persona designata. On the other hand, the learned Counsel for the Petitioner Sri P.N. Venugopalan in Criminal

Revision Case No. 1270 of 1965 contended that the Magistrate exercising his functions u/s 101 of the Act is a judicial officer exercising functions

as a Magistrate and that he is amenable to the revisional jurisdiction as contemplated under Sections 435 and 439 of the Code of Criminal

Procedure.

To appreciate the points involved in these revision petitions, it is necessary to set out the relevant provisions of Section 101 of the Hindu

Religious and Charitable Endowments Act.

Section 101:

(1) Where a person has been appointed-

(a) as trustee or executive officer of a religious institution, or

(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, in any scheme framed by the Board

before the 30th September 1951, and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the

records accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended

from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant,

not being a person claiming in good faith to be in possession on his own account or on account of some person not being such trustee, office-

holder or servant, any Presidency Magistrate or any Magistrate of the First Class in whose jurisdiction such institution or property is situated shall,

on application by the person so appointed, and on the production of the order of appointment and where the application is for possession of

property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution,

direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof,

as the case may be.

This provision corresponds to Section 87 of the Hindu Religious and Charitable Endowments Act of 1951 which is in pari materia with Section

101 of the Act.

The material points, that arise for consideration, in the light of the provisions of Section 101 of the Act relevant for the purpose of decision in

these petitions, are as follows:

(1) Any Presidency Magistrate or any Magistrate of the First Class having territorial jurisdiction where the properties are to be delivered is

empowered to deal with, under this section

(2) that such Magistrate can direct delivery of the possession of religious institution, records and accounts and properties thereof as the case may

be after complying with the following conditions mentioned therein

(a) on the production of the order of appointment by the Commissioner ;

(b) on the production of the certificate issued by the Commissioner in the prescribed form setting forth that the property in question belongs to the

religious institution;

(c) that the Applicant was resisted in or prevented from obtaining possession of the religious institution or properties thereof by a trustee,

officeholder or servant of the religious institution who has been dismissed or suspendet from the office or is otherwise not entitled to be in

possession and

(d) that such Applicant was resisted in or prevented from taking possession of the properties by any person claiming title from such trustee, office

holder or servant not being a person claiming in good faith to be in possession on his own account or on account of some person not being such

trustee, etc.

It is clear from this section that the Magistrate has to decide on the issues whether the order of appointment, and certificates produced by the

Applicants are true and genuine, whether the persons who offer resistance to the trustee appointed by the Commissioner taking delivery of the

property have title of their own to continue in possession and whether the claim in that behalf is in good faith. Before coming to a decision on the

issues, the Magistrate has to hold an enquiry into the matter. He has to issue notice to the parties who may be affected by his order. In doing so the

Magistrate is discharging his functions judicially and the proceedings before him are judicial proceedings. It cannot be said that the functions

exercised by the Magistrate u/s 101 of the Act are either ministerial or executive.

On this point Mr. P. N. Venugopalan besides citing several decisions, mainly relied upon two decisions Prattipati Dandaiah v. Venkatarama

Dikshitulu (1953) 2 M.L.J. 550 (H.N.): ILR 1954 Mad. 441 and Bathula Krishna Brahmam and Others Vs. Daram Chenchi Reddy and Others, .

These two decisions dealt with Section 87 of the Hindu Religious and Charitable Endowments Act of 1951 which as already stated is in pari

materia with Section 101 of Act. In the the earlier decision Subba Rao J., as he then was on behalf of the division Bench expressed in the following

terms relating to the functions of a Magistrate exercising under the provisions of Section 87 of the Act of 1951:

A Magistrate is a judicial officer and the Legislature must be presumed to know that he follows the rules of judicial procedure. Before a Magistrate

can direct delivery of possession of pro. perty u/s 87 of Madras Act (XIX of 1951) he should issue notice to the party affected. An order made by

a Magistrate without issuing notice to the archaka or the tenants claiming under him is bad because it offends the fundamental principles of natural

justice.

I respectfully agree with the abovementioned obserrations and I am certainly bound by them. In the later decision Chandra Reddy J., as he then

was, speaking on behalf of the Bench on this point, agreed with the observations made by Subba Rao J., as he then was, and stated that the

proceedings u/s 87 of the Act of 1951 before the Magistrate were judicial in character as he has to hold an enquiry into the matter before reaching

a conclusion. It is, therefore, clear that the proceedings before the Magistrate u/s 101 of the Act are undoubtedly-judicial proceedings.

The next important point to be considered is whether the Magistrate exercising powers u/s 101 of the Act is a Court or persona designate If the

Magistrate is found to be a Court, then there is no difficulty in holding that it is an inferior criminal Court within the purview of Sections 435 and

439 of the Code of Criminal Procedure. On this point also the learned Counsel, Mr. P.N. Venugopalan cited several authorities mainly relying

upon Bathula Krishna Brahmam and Others Vs. Daram Chenchi Reddy and Others, which I had already mentioned in connection with another

point in the previous paragraph. Chandra Reddy C.J., in Bathula Krishna Brahmam and Others Vs. Daram Chenchi Reddy and Others, held that

the Magistrate exercising powers u/s 87 of the Act of 1951 is a Court and not a persona designata. The learned Judge based his conclusion mainly

on the ground that the Magistrate exercises a judicial function and that additional duties are entrusted to him as a presiding officer of the Court and

that his jurisdiction is enlarged, quite dissimilar to the situation where an officer is constituted as special authority. I do not think that it is necessary

to go into the details of the discussion relating to this point in the said decision on the view that I am taking in the light of the decision of the

Supreme Court reported in The Dargah Committee, Ajmer Vs. State of Rajasthan, .

The Supreme Court held that the Magistrate entertaining an application and holding an enquiry u/s 234 of the Ajmer-Merwar Municipalities

Regulation (VI of 1925) does so as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of

Criminal Procedure irrespective of the fact whatever may be the character of the proceedings whether it is purely ministerial or judicial or quasi-

judicial. Section 234 of the said Regulation provides inter alia that any tax claimable or recoverable by this Act after a demand has been made

therefore in the manner prescribed by rule be recovered on an application to a 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 movable properties

within the limits of such Magistrate''s jurisdiction belonging to such person. The power to direct the recovery of the tax by sale of any movable

property by distress and sale is conferred on a Magistrate having territorial jurisdiction. Similarly u/s 101 of the Act the power to direct delivery of

the properties is conferred on a First Class Magistrate having territorial jurisdiction namely, where such properties are situate. Both these

provisions do not confer powers on a Court. Powers are conferred by the respective enactments on the Magistrates for limited purposes. It is no

doubt true that the Supreme Court has said that the nature of enquiry contemplated by Section 234 of the Ajmer-Merwar Municipalities

Regulation (VI of 1925) partakes of the character of ministerial enquiry rather than the judicial enquiry. But it has been laid down at page 577 as a

statement of law, the following principle, in unequivocal terms which, with great respect, I am of the view applies to the present revision petitions:

Now looking at Section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings.... 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 persona designate and not as a Magistrate functioning and exercising his authority under the Code of

Criminal Procedure. He cannot, therefore, be regarded as an inferior criminal Court.

The proceedings u/s 101 of the Act directing delivery of the properties are in my view of civil nature and not criminal, as the recovery of tax by

distress and sale of movable properties are found to be civil proceedings and not criminal. I, therefore, hold that the Magistrate exercising powers

u/s 101 of the Act though judicial in character is persona designata and not a Court much less inferior criminal Court. On this preliminary point, I

find that these petitions under Sections 435 and 439 of the Code of Criminal Procedure are not maintainable. It is, therefore, not necessary to

decide either on merits or any other point of law raised in the petitions. The petitions are dismissed.

The Petitioners, if so advised, may file petitions u/s 227 of the Constitution.