# THE DARGAH COMMITTEE, AJMER v. STATE OF RAJASTHAN

- **Citation:** [1962] 2 S.C.R. 265
- **Court:** Supreme Court of India
- **Decided:** 1959-01-13
- **Case number:** Criminal Appeal No. 162 of 1959
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-dargah-committee-ajmer-v-state-of-rajasthan-2251
- **Pages:** 12

## Headnote

Municipality-Costs incurred for repairs realisable by Committee as tax-Magistrate entertaining application-If an inferior
criminal court-Ajmer-Merwara Municipalities Regulation, r925
(Regulation VI of r925), ss. 222(4), 234.
On the failure of the appellant to carry out the requisition
by the Municipality to execute certain repairs to its property the
Municipality carried out the said repairs after giving due notice,
the cost of which became recoverable from the appellant as tax
under s. 222(4) of the Ajmer Merwara Municipalities Regulation.
The Municipality applied under s. 234 of the Regulation to the
Additional Tehsildar and Magistrate, II Class, Ajmer for the
recovery of the amount of cost incurred by them, and the
magistrate passed an order calling upon the appellant to pay the
dues.
Against this order the appellant preferred a criminal
revision application in the court of Sessions Judge which was
rejected as there was no ground to interfere in revision.
The
appellant then moved the High Court in its revisional jurisdiction wherein the respondents raised preliminary objection that
the criminal revision application filed by the appellant was
incompetent since the Magistrate who entertained respondent
No. 2 Municipal Committee's application under s. 234 was not
an inferior criminal court under s. 439 of the Criminal Procedure
Om Parkas!I
v.
State of PuHj11.b
Raghubar
Dayal j.
April a~.
266
SUPREME COURT REPORTS
[1962)
z96I
Code, the said objection was upheld and the criminal revision
application dismissed on that ground.
c
D:irgah A.
The question was whether the Magistrate who entertained
ommi '"
;mer the application made before him by the Municipality under
St 1 of~ . th
s. 234 of the Regulation was an inferior criminal court under
a •
ayas ans. 439 of the Code of Criminal Procedure, and also whether an
application under s. 234 could be made unless the rules were
framed and the forms of the notice for making a demand under
s. 222 were prescribed.
Held, that the Proceedings initiated before a Magistrate
under s. 234 of the Ajmer Merwara Municipalities Regulation
were merely in the nature of recovery proceedings and no other
questions could be raised in the said proceedings. The nature
of the enquiry contemplated bys. 234 was very limited; it prima
facie partook of the character of a ministerial enquiry rather
than judicial enquiry and at the best could be treated as a proceeding of a civil nature but not a criminal proceeding and the
Magistrate who entertained the application was not an inferior
criminal court.
Whatever may be the character of the proceedings, whether it was purely ministerial or judicial or quasi-judicial, the
Magistrate who entertained the application and held the enquiry
did so because he was 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 could not therefore be regarded as an inferior
criminal court.
Held, further, that if the rules were not prescribed as required bys. 234 of the Regulation then all that could be said was
that there was no form prescribed for issuing a demand notice,
that did not mean that the statutory power conferred on the
committee bys. 222(1) to make a demand was unenforceable
and an amount which was claimable by virtue of s. 222(1) did
not cease to be claimable just because rules had not been framed prescribing the form for making the said demand.
Crown through Municipal Committee, Ajmer v. Amba Lal,
Ajmer-Merwara Law Journal, Vol. V, 92, Re Dinbai Jijibhai
Khambatta, (1919) I.L.R. 43 Born. 864, V. B. D'Monte v. Band1a
Borough Municipality, I.L.R. 1950 Born. 522, Emperor v. Devappa
Ramappa, (1918) 43 Born. 607, Re Dalsukhram Hurgovandas,
(1907) 6 Cr. L. J. 425 and Municipal Committee, Lashkar v. Shahbuddin, A.LR. 1952 M. B. 48, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 162 of 1959.
Appeal by special leave from the judgment and

## Text

2 S.C.R. SUPREME COURT REPORTS
265
to murder even although this completed act would
not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but
would nonetheless be an attempt".
This supports our view.
We therefore hold that the conviction of the
appellant under s. 307, Indian Penal Code, is correct
and accordingly dismiss this appeal.
Appeal dismissed.
THE DARGAH COMMITTEE, AJMER
v.
STATE OF RAJASTHAN
(P. B. GAJENDRAGADKAR, K. N. WANCHOO,
K. C. DAS GUPTA and
T. L. VENKATARAMA AIYAR, JJ.)
Municipality-Costs incurred for repairs realisable by Committee as tax-Magistrate entertaining application-If an inferior
criminal court-Ajmer-Merwara Municipalities Regulation, r925
(Regulation VI of r925), ss. 222(4), 234.
On the failure of the appellant to carry out the requisition
by the Municipality to execute certain repairs to its property the
Municipality carried out the said repairs after giving due notice,
the cost of which became recoverable from the appellant as tax
under s. 222(4) of the Ajmer Merwara Municipalities Regulation.
The Municipality applied under s. 234 of the Regulation to the
Additional Tehsildar and Magistrate, II Class, Ajmer for the
recovery of the amount of cost incurred by them, and the
magistrate passed an order calling upon the appellant to pay the
dues.
Against this order the appellant preferred a criminal
revision application in the court of Sessions Judge which was
rejected as there was no ground to interfere in revision.
The
appellant then moved the High Court in its revisional jurisdiction wherein the respondents raised preliminary objection that
the criminal revision application filed by the appellant was
incompetent since the Magistrate who entertained respondent
No. 2 Municipal Committee's application under s. 234 was not
an inferior criminal court under s. 439 of the Criminal Procedure
Om Parkas!I
v.
State of PuHj11.b
Raghubar
Dayal j.
April a~.
266
SUPREME COURT REPORTS
[1962)
z96I
Code, the said objection was upheld and the criminal revision
application dismissed on that ground.
c
D:irgah A.
The question was whether the Magistrate who entertained
ommi '"
;mer the application made before him by the Municipality under
St 1 of~ . th
s. 234 of the Regulation was an inferior criminal court under
a •
ayas ans. 439 of the Code of Criminal Procedure, and also whether an
application under s. 234 could be made unless the rules were
framed and the forms of the notice for making a demand under
s. 222 were prescribed.
Held, that the Proceedings initiated before a Magistrate
under s. 234 of the Ajmer Merwara Municipalities Regulation
were merely in the nature of recovery proceedings and no other
questions could be raised in the said proceedings. The nature
of the enquiry contemplated bys. 234 was very limited; it prima
facie partook of the character of a ministerial enquiry rather
than judicial enquiry and at the best could be treated as a proceeding of a civil nature but not a criminal proceeding and the
Magistrate who entertained the application was not an inferior
criminal court.
Whatever may be the character of the proceedings, whether it was purely ministerial or judicial or quasi-judicial, the
Magistrate who entertained the application and held the enquiry
did so because he was 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 could not therefore be regarded as an inferior
criminal court.
Held, further, that if the rules were not prescribed as required bys. 234 of the Regulation then all that could be said was
that there was no form prescribed for issuing a demand notice,
that did not mean that the statutory power conferred on the
committee bys. 222(1) to make a demand was unenforceable
and an amount which was claimable by virtue of s. 222(1) did
not cease to be claimable just because rules had not been framed prescribing the form for making the said demand.
Crown through Municipal Committee, Ajmer v. Amba Lal,
Ajmer-Merwara Law Journal, Vol. V, 92, Re Dinbai Jijibhai
Khambatta, (1919) I.L.R. 43 Born. 864, V. B. D'Monte v. Band1a
Borough Municipality, I.L.R. 1950 Born. 522, Emperor v. Devappa
Ramappa, (1918) 43 Born. 607, Re Dalsukhram Hurgovandas,
(1907) 6 Cr. L. J. 425 and Municipal Committee, Lashkar v. Shahbuddin, A.LR. 1952 M. B. 48, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 162 of 1959.
Appeal by special leave from the judgment and
order dated January 13, 1959, of the Rajasthan High
Court in D. B. Criminal Revision No, 47 of 1957.
l
~I
;
~!
~:
'•
'I•
2 S.C.R. SUPREME COURT REPORTS
267
N. C. Chatterjee, J. L. Datta and 0. P. Lal, for
appellant.
the
Mukat Behari Lal Bhargava and Naunit Lal,
respondent No. 2.
Dargah
for Coinmittee, Ajm1f'
v.
1961. April 24.
The
delivered by
State of Rajaslhan
Judgment of the Court was
_
GAJENDRAGADKAR, J.-On June 13, 1950, the Municipal Committee, Ajmer, respondent 2, issued a notice
against the appellant, the Durgah Committee, Ajmer,
under s. 153 of the Ajmer-Merwara Municipalities
Regulation, 1925 (VI of 1925) (hereafter called the
Regulation) calling upon it to carry out certain repairs
in the Jhalra Wall which was in a dilapidated condition. The appellant did not comply with the said
requisition and so respondent 2 served another notice
on the appellant under s. 220 of the Regulation intimating to it that the required repairs would be carried
out at the expense of respondent 2 and that the cost
incurred by it would be recovered from the appellant.
This notice was served on July 3, 1950. Even so the
appellant took no steps to make the repairs and so
respondent 2 proceeded to get the repair work done at
its expense which, amounted to Rs. 17,414. Under
s. 222(4) of the Regulation this sum became recoverable from the appellant as a tax.
A notice of demand
in that behalf was issued on the appellant on April
1, 1952, and in pursuance of the said notice respondent
2 applied to the Additional Tehsildar and Magistrate
II Class, Ajmer, for the recovery of the said amount
under s. 234 of the Regulation.
In the proceedings before the learned Magistrate the
appellant raised certain pleas. These pleas were rejected and an order was passed calling upon the appellant
to pay the dues in question by August 30, 1956.
Agaimt this order the appellant preferred a criminal
revision application in the Court of the Sessions Judge,
Ajmer. The learned Sessions Judge considered the
contentions raised by the appellant and held that the
view taken by the Magistrate cannot be said to be
incorrect and so there was no ground to interfere in
revision. F.eeling aggrieved by the dismissal of its
Gajendragadkar J.
268
SUPREME COURT REPORTS
[1962)
r961
rev1s10n application the appellant moved the High
Court of Judicature for Rajasthan in its revisional
Dargah .
jurisdiction. Before the High Court, on behalf of
Commitl1e. A J"'"
1
h S
f u
·
h
Jl
respondent
, t e
tate o .naiast an, as we as resState of ;·ajasthan pondent 2, a preliminary objection was raised that the
criminal revision application filed by the appellant
Gajendragadkar J. was incompetent since the Magistrate who entertained
respondent 2's application made under s. 234 was not
an inferior criminal court under s. 439 of the Code of
Criminal Procedure. This preliminary objection was
upheld by the High Court and the criminal revision
application dismissed on that ground. It is against
this order that the appellant has come to this Court
by special leave; and the short question whioh the
appeal raises for our decision is whether the Magistrate
who entertained the application made before him by
respondent 2 under s. 234 was an inferior criminal
court under s. 439 of the Code of Criminal Procedure.
Before dealing with this point it is relevant to refer
to the scheme of the material provisions of the Regulation. Section 153 confers power on the Municipality
to order removal or repair of buildings which may be
found in a dangerous state. Under this section the
Committeee may by notice require the owner of the
building, wall or structure to remove t.he same forthwith or cause 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. 153 complies with the requisition nothing more need be done.
If, however, the owner does not comply with the
requisition served on him the Committee is empowered to cause the repairs to be made after six hours'
notice to the owner under s. 220. This section provides
that whenever the terms of any notice issued under
this Regulation have not been complied with the
Committee may, after six hours' notice, cause the act
to be done by its officers. As a corollary to this provision, and indeed as its consequence, s. 222 empowers
the Committee to recover the cost of the work done
;
2 S.C.R. SUPREME COU1tT l~EPORTS
269
under s. 220. Section 222(1) authorises the Committee
I96I
to recover the cost of the work from the person in
d~fault.
Sub.s~ctions (2) and (3) of s. 222 then deal Conm~1~;;,al~jmer
with the questwn as to which person should be held
v.
to be in default, the owner or the occupier; with that State of llajasthan
question we are not concerned in the present appeal.
. --
Sub-section (4) of s. 222 provides that where anyGa1cndragadkar J.
money recoverable by the Committee under this sec.
tion 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.
By sub.section (5) it is provided that the contract
between the owner and the occupier is not affected by
this section. It is under s. 222( 4) that a demand notice
was served on the appellant by respondent 2.
That
takes us to s. 234 which provides for the machinery of
recovery of municipal claims. This section provides,
inter alia, 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 reuovered 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 proviso to this section prescribes
that nothing in this section shall prevent the Commit.
tee at its discretion from suing for the amount payable
in any competent Civil Court. It would thus be seen
that the object of making an application to the Magis.
trate is to obtain an order from the Magistrate direct.
ing the recovery of the tax claimable or recoverable
by distress and sale of any movable property belonging
to the defaulter. It is under this section that the
Magistrate was moved by respondent 2. That in brief is
the scheme of the material provisions of the Regulation.
The main argument which Mr. Chatterjee, for the
appellant, has pressed before us is that in determining the nature of the proceedings under s. 234 and the
character of the Magistrate who entertains an appli.
cation made under the said section, it is important to
35
270
SUPREME COURT REPORTS
[1962)
z961
bear in mind that a person in the position of the
appellant has no other opportnnity to challenge the
Comm~;;t'~i"'" va~idity of the n?ticc as well as the validity of the
v.
claim made agamst him by the Committee.
The
State of Rajasthan argument is that it would be open to the owner to
conLend that the notice issued under s. 153 is inGajendragadhar J. vali<l or frivolous. It would also be open to him to
contend that the amount sought to be recovered from
him is excessive and that even if the repairs were
carried out they could not have cost as much, and
since the scheme of the Regulation shows that it provides no opportunity to the owner to raise those contentions except in proceedings under s. 234 the nature
of the proceedings and the character of the Magistrate who entertains them should be liberally construed.
The proceedings should be deemed to be judicial
proceedings and the Magistrate should be held to be
an inferior criminal court when he entertains the said
proceedings.
If the 11,ssurnption on which the argument proceeds
that the Regulation provides no other opportunity
to the owner to challenge the notice or to question
the amount claimed from him were sound then there
woul<l be some force in the contention that s. 234
should be liberally construed in favour of the appellant. But is that assumption right? The answer to
this question would depend upon the examination of
three relevant provisions of the Regulation; they arc
ss. 222(4), 93 and 226.
We have already seen that
s. 222(4) provides that any money recoverable by the
Committee under s. 222(1) shall be recovered as if it
were a tax levied by the Committee on the property
and shall be chfLrged thereon. Section 93 provides
for appeiLls fLgainst taxation. Section 93(1) lays down,
inter alia, tlu1t au appeal against the assessment or
levy of any tax under this Regulation shall lie to the
Deputy Commissioner or to such officer as may be
empowered by the State Government in this behalf.
The remaining five sub-sections of s. 93 prescribe t?e
manner in which the appeal should be tried and disposed of. If the amount recoverable by respondent 2
from the appellant is made recoverable as if it were
'
2 S.C.R. SUPREME COURT HEPORTS
271
a tax levied by the Committee, then against the levy
r96r
of such a tax an appeal would be competent under
D
h
s. 93(1). Mr. Chatterjee argues thats. 93(1) provides commit~;;" Ajmer
for an appeal against the levy of a tax, and he draws
v.'
a distinction between the amount made recoverable State of Rajasthan
as if it were a tax and the amount recoverable as a
tax. His contention is that the amount which is Gajendragadkar J.
recoverable under s. 222(1) is no doubt by fiction
deemed to be a tax but against an amount thus deemed to be a tax an appeal would not be competent under
s. 93(1).
We are not impressed by this argument. If
by the fiction introduced by s. 222(4) the amount in
question is to be deemed as if it were a tax it is
obvious that full effect must be given to this legal fiction; and in consequence, just as a result of the said
section the recovery procedure prescribed by s. 234
becomes available to the Committee so would the
right of making an appeal prescribed by s. 93(1) be
available to the appellant. The consequence of the
fiction inevitably is that the amount in question can
be recovered as a tax and the right to challenge the
levy of the tax accrues to the appellant. This position is made perfectly clear by s. 226.
This section
provides, inter alia, that where any order of a kind
referred to in s. 222 is subject to appeal, and an appeal
has been instituted against it, all proceedings to enforce such order shall be suspended pending the deci.
sion of the appeal, and if such order is set aside on
appeal, disobedience thereto shall not be deemed to
be an offence. It is obvious that this section postu.
!ates that an order passed under s. 222 is appealable
and it provides that if an appeal is made against
such an order further proceedings would be stayed.
It is common ground that there is no other provision
in the Regulation providing for an appeal against an
order made under s. 222(1); and so inevitably we go
back to s. 93 which provides for an appeal against
the levy of a tax. It would be idle to contend that
though s. 226 assumes that an appeal lies against an
order made under s. 222(1) the Legislature has for.
gotten to provide for such an appeal. Therefore, in
our opinion, there can be no doubt that reading
272
SUPREME COURT REPORTS
[1962]
r96i
ss. 222, 93 and 226 togeLher the conclusion is inescapable that an a.pp(•al lies under s. 93(1) against the
C
v,a,•·c"" 4 .
demand made bv the Committee on the owner of the
omnn ee,
1n1n
"
.
v.
··
property under E. 22~(1). If that be so, the main, if
State of llaJ""'""" not the sole argument, i.:rgcd in support of the liberal
constn:ction of s. 234 turns out to be fallacious.
Gajendragadka• J.
), ow, looking at s. 234 it is ol"ar 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 under s. 15:l or against the validity of the claim
made by the Committee under s. 222 can an<l. 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 those points are concluded and can
no more be raisPd in proceedings under s. 234. That
is why the nature of the enquiry contemplated by
s. 234 is very limited n,nd it primn, facie partakes of
the character of a ministerial enquiry rather than
judicial CJH]Uiry.
In any event it is difficult lo hold
thn,t the Magistrate who entertains the applicat,ion is
an inferior criminal court.
The claim made before
him is for the recovery of a tnx and the order prayed
for is for the recovery of the tax by distress and sale
of the movable propert,y 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 proceedings, whe~her it is
purely ministerial or judicial or quasi-judicial, the
Magistrate who entertains the application and holds
the enquiry does so bectiuse 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 takon by the High
Court and we see no reason to differ from it. In the
present appeal it is unnecessary to consider what
would be the chn,racter of the proceedings before a
competent Civil Court contemplated by the proviso.
Prima facio such proceedings can be no more than
execution proceedings.
2 S.C.R. SUPREME COURT REPORTS
273
Mr. Chatterjee also attempted to argue thltt the
r96r
proceeding8 under s. 234 taken 11.gainst the B·ppellant
by respondent 2 Were incompetent. because a Jemand r
nlat•gah I.
·-
~,011111tt i:e,
; ;mer
has not been made by respondent 2 on the appellant
v.
in the ~anner prescribed by rule as required by s. 2:~4. state of Raja,than
It dbes appear that rules have not been framed nuder
the Regulation and so no form has been prescribed Gajrndwgadka. J.
for makiug a demand under s. 222( 1 ).
Therefore tho
argument is that, unless the rules are framed and the
form of notice is. prescribed for making a demand
under s. 222(1) no demand can be sa.id to have been
made in the manner ·prescribPd by rules A.nd so '1.n
application cannot be made under s. 2:34.
There are
two obvious answers to this routcntion. The first
answer is that if t.he revisional application made by
the appellant before the High Court was incompaiont
this question could not have been urgecl before the
High Court because it was part of the merits of the
case and so cannot be agitH.ted before us <'ither.
As
soon as it is held that the Ma.gist.rate was not an
inferior criminal court the revisional applicaLion filed
by the appellant before the High Court must be d0em·
ed to be incompetent and rejected on that. preliminary
ground alone.
Besides, on the merits we src no subst11.nce in the argument. If the rnlcs are noC pl'Oscrihed
thon all that can be sctid is thnt tlfor·o is no form proscribed for issuing a demand notice; tlmt dors not mean
that the statutory power conferred on the Commit-ln<'
bys. 222(1) to make a demand is UJH'nforc<'able.
As
a result of the notice served by respondent 2 ag.tinst
the appellant respondent 2 was entitled to make the
necessary repairs aL its oqst.and malw a domH.nd for l'C·
imbursomont of the said cost. That is drn pl:tin cffocl.
of the relevant prnvisions ·of the H,<'gulati•)n; and so,
an amount which was claimable by vil'ttte of s. 2:22(1)
does not cease to be claimable just b<'causo rules h:i.v0
not been framed prescribing tho form for making the
said demand. In our opinion, thcrnfnrn, t.he ron(en.
tion •hat the applic>t~ion made under s. 23.J, was in.
competent must he rnjbctecl.
It now remains to consider some dccisio1rn to ,,-hi ch
274
SUPREME COURT REPORTS
[1962]
i961
our attention was drawn. In Grown through Municipal Committee, Ajmer v. Amba Lal (1), the Judicial
Cam.'.:~:;•hAJmer Commissioner Mr. Norman held that a Magistrate
v.'
entertaining an application under s. 234 of the ReguState of Rajasthan lation is an inferior criminal court. The only reason
. --
given in support of this view appears to be that the
Ga;endragadkar f. Magistrate before whom an application under the said
section is made is appointed under the Code of Criminal Procedure, and so he is a criminal court although
he is not dealing with crime. That is why it was held
that he had jurisdiction to decide whether the conditions under which the Municipality can resort to the
Magistrate are fulfilled.
Having come to this conclusion the learned Judicial Commissioner held that a
revision against the Magistrate's order was competent.
In our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under s. 234 and the status of
the Magistrate who entertains them.
In Re Dinbai Jijibhai Khambatta (') the Bombay
High Court held that the order made by a Magistrate
under s. 161(2) of the Bombay District Municipalities
Act, 1901 (Bombay III of 1901) can be revised by
the High Court under s. 435 of the Code of Criminal
Procedure. This decision was based on the ground
that the former part of s. 161 was purely judicial and
it was held that the latter part of the said section
though not clearly judicial should be deemed to partake of the same character as the former part. Thus
the decision turned upon the nature of the provisions
contained in s. 161(2).
In V. B. D'Monte v. Bandra Borough Municipality(')
a :Full Ben.ch of the Bombay High Court, while dealing with a corresponding provision of the Bombay
Municipal Boroughs Act XVIII of 1925, namely,
s. 110, has held that in exercising its revisional jmisdiction under s. 110 the High Court is exercising a
special jurisdiction ·conferred upon it by the said section and not the jurisdiction conferred under s. 435 of
the Code of Criminal Procedure. According to this
(1) Ajmer-11£erwara Law Journal, Vol. V, p. 92.
(2) (1919) I.L.F, 43 Bom. 864,
(3) I.L.R. 1950 Bom. 522.
;
2 S.C.R.
SUPREME COURT REPORTS
275
decision the matter coming before the High Court in
1961
such revision is of civil nature and so the revisional
application would lie to the High Court on its civil side c
Da•gahA.
d
,
. .
J 'd
I .
.
'fi
h
h
0111m1ttec,
;mer
an not on its crnnma s1 e.
t 1s s1gm cant t at t e
v.
decision in the case of Emperor v. Demppa Ram. state of Rajasthan
appa (1) which took a contrary view was not followed.
In Re Dalsukhram Hurgovandas (') the Bombay 1;ajn1drngadka• J.
High Court had occasion to consider t.he nature of the
proceedings contemplated by s. 86 of the Bombay
District Municipal Act III of 1901. Under the said
section a Magistrate is em powered to hear an appeal
specified in the said section; and it was held that in
hearing the said appeals the Magistrate is merely an
appellate authority having jurisdiction to deal with
questions of civil liability. He is therefore not an
inferior criminal court and as such his orders are not
subject to the revisional jurisdiction of the High
Court under s. 435 of the Code of Criminal Procedure.
The Madhya Bharat High Court had occasion to
consider a similar question under s. 153 of the Gwalior
Manicipal Act ( 1993 Smt.) in Municipal Committee,
Lashkar v. Shahabuddin (').
Under the said section an
application can be made by the Municipality for recovering the cost of the work from the person in
default. It was held that the order passed in the
said proceedings cannot be revised by the High Court
under s. 435 because the order is an administrative
order and that there was no doubt that the Magistrate
was not an inferior criminal court.
In Mithan Musammat v. The Municipal Board of
Agra & Anr., (') the Allahabad High Court has held
that a Magistrate passing. an order under s. 247(1) of
the United Provinces Municipalities Act, 1926 does not
do so as an inferior criminal court within the meaning
of s. 435 of the Code of Criminal Procedure. To the
same effect is the decision of the Allahabad High
Court in Madho Ram v. Rex (5).
We have referred to these decisions only to illustrate that in dealing with similar provisions under the
(1) (19181 43 Born. 607.
(2) (1907) 6 C1. L.J. 425,
(3) A.LR. (39) t952 M.B. 48.
(4) I.L.R. (1956) 2 All. 60.
(5) LL.R. (1950) All. 39>.
276
SUPREME COURT REPORTS
Ll962]
r96r
municipal law different High Courts seem to have
taken the view that Magistrates entertaining recovery
c
DMgahA.
proceedings under the appropriate statutory proviomnnttee,
;mer sions are not inforior criminal courts under the Code
v.
State of Rajasthan of Criminal Procedure. Though we have referred to
-
these decisions we wish to make it clear that we
Gajendrngadk"" J. should not be taken to have expressed any opinion
about the correctness or otherwise of the views taken
by the different High Courts in regard to the questions
raised before them.
April 24.
The result is the appeal fails and is dismissed.
Appeal dismissed.
CHAND! PRASAD CHOKHANI
v.
THE STATE OF BIHAR
(S. K. DAS, J. L. KAPUR, nir. HIDAYATULLAH,
J. C. SHAH and T. L. VENKA'l'ARAMA AIYAR, JJ.)
Supreme Court-Grant of Special Leave~ Practice-Appeal by
Special Leave-Grant of special leave-·-Propriety, if can be questioned at hearing of appeal.
Sales tax-Orders of Board of Revenue in revision-Orders of
High Court-Special leave granted against orders of Board-
\
Maintainability of appeal.
The appellant firm was assessed to sales tax under the provisions of the Bihar Sales Tax, 1944, for three periods commencing from October l, 1947, and ending on March 31, 1950. Its
claim for certain deductions was disallowed, and its applications
in revision under s. 24 of the Act to the Board of Revenue,
Bihar, were dismissed by three orders dated August 20, 1953,
September 3, r953 and April 30, 1954· Under s. 25(1) of the
Act the appellant applied to the Board to state a case to the
High Court of Patna on certain questions of law, butthe applications were dismissed by order dated August 30, 1954, on the
ground that no questions of law arose.
The appellant then
moved the High Court for requiring the Board to stale a case on
the said questions of law. The High Court dismissed the applications in respect of the first two periods of assessment, but by
order dated November 17, 1954, directed the Board ~o state a