Nanak Chand and Another vs Panchayat Samiti Nuh, Distt. Gurgaon

I.S. Tiwana, J.—The Respondent-Panchayat Samiti, Nuh, filed an application u/s 52 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter referred to as the Act) for the recovery of certain amount from Tek Ram as the principal debtor in the light of an agreement which he had entered into with the Panchayat Samiti for the removal of carcass of dead animal in the area of that Samiti and Nanak Chand and Tej Ram Petitioners as sureties for Tek Ram in the Court of Sub Divisional Magistrate, Nuh As a result of the enquiry that followed, he came to the conclusion vide his order dated March 20, 1980, that the said amount could not be recovered from the Petitioners as there was no legal evidence supporting the same. The order of the Magistrate was successfully impugned by the Panchayat Samiti before the Additional Sessions Judge, Gurgaon, u/s 397 of the Code of Criminal Procedure. The said Court while setting aside the order of the Magistrate accepted the prayer made by the Samiti to recover the amount in question from them. The Petitioners now impugn this order of the Additional Sessions Judge on the solitary ground that, in the given facts and circumstances of the case, no such revision petition was maintainable before him against the order of the Magistrate u/s 397 of the Code of Criminal Procedure. Having heard the learned Counsel for the parties at some length, I find considerable merit in the contention of the learned Counsel.

It is not disputed before me by either of the parties in the light of the observations made by a learned Single Judge of this Court in Shri Chao Khan v. The Sub Divisional Magistrate, Ferozepur Jhirka and Anr. 1983 (2) L. L. R 563, that in the absence of any procedure prescribed under the Act for fixing the quantum of amount due to the Samiti, the Magistrate could go into the validity of the demand or the quantum the amount claimed by the Samiti and he was perfectly within his jurisdiction when he said that the amount in question could not be recovered from the Petitioners in the absence of any legal evidence for fixation of liability on them. All that is contended on behalf of the Respondent-Samiti, however, is that once it is conceded, as has been done by the learned Counsel for the Petitioners, that the Magistrate has the jurisdiction to go into the validity of the demand raised by the Samiti against them, the entire proceedings before the Magistrate were in the nature of judicial proceedings before an inferior Criminal Court and in the light of that the revision was maintainable before the Additional Sessions Judge u/s 397, Criminal Procedure Code. This submission of the learned Counsel for the Respondent-Samiti, however, does not impress me at all.

No doubt, it is true that a revision petition in the Court of of Sessions Judge or an Additional Sessions Judge is only maintainable against the proceedings before any inferior Criminal Court, yet in this case I find in the light of the phraseology of Section 52 of the Act that the Magistrate was exercising jurisdiction only as a persona designata and the proceedings before him were in the nature of recovery proceedings and while carrying out the same he was not acting as an inferior Criminal Court. For this conclusion of mine, I rely upon the following observations made by their Lordships of the Supreme Court in The The Dargah Committee, Ajmer Vs. State of Rajasthan, , wherein interpretation of Section 234 of the Ajmer Merwara Municipalities Regulation, 1925, was involved and it was to the effect "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 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 any movable property within the limits of such Magistrate''s jurisdiction belonging to such person." The material part of this section is almost similar to that of Section 52 of the Act which reads as under:

Power to recover sums of money claimable by Panchayat Samitis. (1) Save as provided in Section 76 all sums of money claimable by a Panehayat Samiti under this Act may be recovered, on application to a Magistrate having jurisdiction in the district or any other place where the person from whom the money is claimable may for the time being the resident, by distress or sale of any immovable property within limits of its jurisdiction belonging to such person. The cost of such proceedings shall be recoverable in the same manner as the said sums of money.

(2) An application made under Sub-section (1) shall be in writing and shall be signed by the Executive Officer of the Panchayat Samiti but it shall not be necessary to present it in person." After analysing the scope of the jurisdiction of the Magistrate u/s 234 of the Regulation referred to above, their Lordship concluded the matter thus:

Now looking at Section 214, it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings. All questions which may legitimately be raised against the validity of the notice served u/s 153 or against the validity of the claim made by the Committee u/s 222 can and ought to be raised in appeal u/s 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raised in proceedings u/s 234. That is why the nature of the enquiry contemplated by Section 234 is very limited and it prima facie partakes of the character of a ministerial enquiry 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 persona designata 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. That is the view taken by the High Court and we see no reason to differ from it.

The learned Counsel for the Respondent-Samiti, however, urges with some amount of vehemence that in the absence of any procedure parallel to the one prescribed in Section 93(1) and 222 of the Regulation referred to above in the light of which, as the observations of their Lordships of the Supreme Court indicate, the jurisdiction of the Magistrate to determine the validity of the demand raised against the defaulter in that case was excluded is available in the Act, it cannot be held that either the proceedings before the Magistrate in the instant case were not judicial or he was not acting as an inferior criminal Court. It is true that the Act does not contemplate or provide for any such procedure as was laid down in Section 93(1) and 222 of the Regulation referred to above for determining the amount due from the Petitioners and in the light of that the Magistrate has to be conceded the jurisdiction to go into this aspect of the matter in the light of the principles of natural justice, yet that does not make any difference that the proceedings before him in the case in hand would part-take of the nature of the proceedings before an inferior criminal Court. A similar argument was repelled by the Supreme Court in Dargah Committee, Ajmer''s case (supra) with the following observations:

(Already reproduced above). That is why, we think, whatever may the character of the proceedings, 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 designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure.

In the light of this unambiguous enunciation of law, I cannot possibly entertain the argument of the learned Counsel for the Respondent Samiti any further.

It may be observed at this stage that Mr. Pawar: the learned State counsel fairly and frankly concedes that the proceedings carried out by the Magistrate in the instant case were not as an inferior criminal Court but only as a person, designated

In the light of thea discussion above, I allow this petition and set aside the order of the Additional Sessions Judge. Gurgaon.