The Darcah Committee, Ajmer vs State Of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 162 of 1959

Decision Date: 24 April 1961

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

The case titled The Darcah Committee, Ajmer versus State of Rajasthan was decided on 24 April 1961 by the Supreme Court of India. The judgment was authored by Justice P. B. Gajendragadkar, and the bench comprised Justices P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta, T. L. Venkatarama, and others. The petitioner in the matter was the Darcah Committee of Ajmer, while the respondent was the State of Rajasthan. The official citation of the decision is reported in 1962 AIR 574 and in the Supreme Court Reporter Supplement (2) page 265. The case also appears in the citation R 1966 SC 108 (3). The statutory context involved provisions of the Ajmer‑Merwara Municipalities Regulation of 1925, specifically Regulation VI of 1925 and sections 222(4) and 234 of that regulation, together with section 439 of the Criminal Procedure Code.

The factual background concerned the failure of the petitioner to comply with a requisition issued by the municipal authority to carry out certain repairs on property it owned. After giving the required notice, the municipality performed the repairs and sought to recover the cost from the petitioner by treating the amount as a tax under section 222(4) of the Ajmer‑Merwara Municipalities Regulation. To enforce this claim, the municipality filed an application under section 234 of the regulation before the Additional Tehsildar and Magistrate of the second class in Ajmer, requesting the recovery of the expenses incurred. The magistrate responded by ordering the petitioner to pay the demanded amount. The petitioner challenged this order by filing a criminal revision application in the court of the Sessions Judge, but the revision was dismissed on the ground that there was no jurisdiction to interfere. Subsequently, the petitioner appealed to the High Court exercising its revisional jurisdiction. In that appeal, the respondents raised a preliminary objection that the magistrate who entertained the municipal application under section 234 was not an inferior criminal court as defined by section 439 of the Criminal Procedure Code. The High Court upheld this objection and dismissed the criminal revision on that basis.

The principal questions before the Supreme Court were twofold: first, whether the magistrate who considered the municipal application under section 234 qualified as an inferior criminal court under section 439 of the Criminal Procedure Code; and second, whether an application under section 234 could be properly made in the absence of rules prescribing the form of a demand notice under section 222. The Court held that the proceedings initiated before the magistrate under section 234 were essentially recovery proceedings and did not involve any issues beyond the recovery of the municipal cost. The nature of the enquiry contemplated by section 234 was described as very limited, bearing the character of a ministerial enquiry rather than a judicial one. At most, the Court said, such a proceeding could be characterized as civil in nature and not criminal. Consequently, the magistrate who entertained the application was not an inferior criminal court within the meaning of section 439. The Court further observed that irrespective of whether the proceeding was purely ministerial, judicial, or quasi‑judicial, the magistrate acted because he had been designated for that purpose and therefore must be regarded as a persona designate, not as a magistrate exercising authority under the Criminal Procedure Code. Regarding the second question, the Court ruled that the absence of prescribed rules for issuing a demand notice under section 234 did not render the statutory power granted by section 222(1) unenforceable. The amount claimed under section 222(1) remained recoverable even though the form of the demand notice had not been formally prescribed. Thus, the petitioner's objections were rejected and the municipal authority’s recovery of the cost as tax was affirmed.

In this case the Court observed that the official who entertained the application had been appointed solely for that purpose and therefore must be regarded as a designated person rather than as a magistrate exercising authority under the Code of Criminal Procedure; consequently he could not be considered an inferior criminal court. The Court further held that the failure to prescribe rules required by section 234 of the Regulation did not eliminate the statutory power conferred on the committee by section 222(1) to issue a demand, nor did it extinguish the liability of the amount claimable under that provision simply because a prescribed form for the demand had not been drafted. The decision cited several authorities, including Crown through Municipal Committee, Ajmer v. Amba Lal; Ajmer‑Merwara Law Journal, vol. V, p. 92; Re Dinbai Jijibhai Khambatta (1919) I.L.R. 43 Bom. 864; V. B. D’Monte v. Bandra Borough Municipality I.L.R. 1950 Bom. 522; Emperor v. Devappa Ramappa (1918) 43 Bom. 607; Re Dalsukhram Hurgovandas (1907) 6 Cr. L.J. 425; and Municipal Committee, Lashkay v. Shahbuddin A.I.R. 1952 M.B. 48. The judgment fell under criminal appellate jurisdiction for Criminal Appeal No. 162 of 1959, taken on special leave from the Rajasthan High Court order dated 13 January 1959 in Criminal Revision No. 47 of 1957. Counsel for the appellant and for respondent No. 2 were listed, and the judgment was delivered on 24 April 1961. The factual background began on 13 June 1950 when the Municipal Committee, Ajmer (respondent 2) served a notice under section 153 of the Ajmer‑Merwara Municipalities Regulation, 1925, requiring the Durgah Committee, Ajmer (the appellant) to repair a dilapidated portion of the Jhalra Wall. After the appellant failed to act, respondent 2 issued a further notice on 3 July 1950 under section 220 stating that the repairs would be undertaken at its own expense and that the resulting cost would be recovered from the appellant. The appellant nevertheless made no repairs, prompting respondent 2 to complete the work at a cost of Rs 17,414. Under section 222(4) that amount became recoverable as a tax. A demand notice was sent to the appellant on 1 April 1952, and based on that notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for recovery of the sum under section 234 of the Regulation. During the proceedings before the learned magistrate the appellant raised several pleas, all of which were rejected, and the magistrate issued an order directing the appellant to pay the assessed dues.

The magistrate issued an order directing the appellant to pay the outstanding amounts by 30 August 1956. The appellant subsequently filed a criminal revision petition before the Sessions Judge of Ajmer, challenging that order. The Sessions Judge examined the appellant’s arguments and concluded that the magistrate’s decision was not erroneous, therefore finding no basis for interfering with the magistrate’s order in revision. Dissatisfied with the dismissal of its revision petition, the appellant approached the Rajasthan High Court exercising its revisional jurisdiction. In the High Court proceedings, counsel representing respondent 1, the State of Rajasthan, together with respondent 2, raised a preliminary objection that the appellant’s criminal revision was legally incompetent because the magistrate who entertained respondent 2’s application under section 234 was not an inferior criminal court as defined by section 439 of the Code of Criminal Procedure. The High Court accepted this preliminary objection, upheld it, and consequently dismissed the appellant’s criminal revision on that ground. The appellant then secured special leave to bring the present appeal before this Court, seeking determination of a singular question: whether the magistrate who considered respondent 2’s application under section 234 qualified as an inferior criminal court within the meaning of section 439 of the Code of Criminal Procedure. Before addressing that issue, the Court found it necessary to outline the relevant scheme of the municipal regulation involved. Section 153 of the regulation empowers the municipal Committee to order the removal or repair of any building, wall or structure deemed dangerous. Under that provision the Committee may, by notice, require the owner to either remove the hazardous structure immediately or to carry out repairs deemed essential for public safety. The provision also authorises the Committee to undertake such remedial work at the owner’s expense when it deems immediate action necessary to avert imminent danger. If the owner complies with a notice issued under section 153, no further action is required. However, where the owner fails to comply, the Committee may, after giving six‑hour notice under section 220, cause the required repairs to be performed. Section 220 stipulates that if the terms of any notice issued under the regulation remain unfulfilled, the Committee may, following the six‑hour notice, direct its officers to execute the necessary work. As a direct consequence of this authority, section 222 authorises the Committee to recover the cost of work carried out under section 220. Sub‑section (1) of section 222 permits the Committee to recover such costs from the party in default, while sub‑sections (2) and (3) address the determination of whether the defaulting party is the owner or the occupier.

In this case the Court observed that the question of whether the owner or the occupier is deemed to be in default under section two hundred twenty‑two was not before it for determination. Section two hundred twenty‑two, subsection four, provides that if any sum recoverable by the Committee under that provision is payable by the owner of the property, the amount shall be charged on the property and shall be recoverable as if it were a tax levied by the Committee on that property. Subsection five of the same section stipulates that the contractual relationship between the owner and the occupier remains unaffected by the operation of the provision. It was under subsection four that respondent two served a demand notice on the appellant. The discussion then proceeds to section two hundred thirty‑four, which governs the procedure for recovering municipal claims. That section states, inter alia, that any tax that is claimable or recoverable by a Committee under the Regulation, after a demand has been made in the manner prescribed by the applicable rule, may be recovered upon application to a Magistrate who has jurisdiction within the municipal limits or in any other place where the person liable for payment resides. The recovery may be effected by distress and sale of any movable property belonging to that person which is situated within the jurisdiction of the Magistrate. The proviso to section two hundred thirty‑four clarifies that nothing in the provision bars the Committee, at its discretion, from instituting suit for the amount payable in any competent civil court. Consequently, the purpose of applying to the Magistrate is to obtain an order directing the recovery of the tax claimable or recoverable by means of distress and sale of the defaulter’s movable property. It was under this provision that respondent two moved the Magistrate. In brief, these paragraphs outline the operative scheme of the material provisions of the Regulation. The principal argument advanced on behalf of the appellant, through counsel, is that in characterising the nature of the proceedings under section two hundred thirty‑four and the status of the Magistrate who entertains such applications, it must be borne in mind that a person in the appellant’s position has no alternative forum to challenge either the validity of the notice issued by the Committee or the validity of the claim asserted against him. The argument asserts that the owner could contend that the notice issued under section one hundred fifty‑three is invalid or frivolous, and could also argue that the amount claimed is excessive or that the actual cost of any required repairs could not have been as high as claimed. Since the Regulation, according to the appellant, provides no avenue for the owner to raise these contentions except through proceedings under section two hundred thirty‑four, the appellant submits that those proceedings should be construed liberally as judicial proceedings and that the Magistrate hearing them should be regarded as an inferior criminal court.

In this case, the Court examined whether the Regulation truly left the property owner without any other means of challenging the notice or the amount claimed. The analysis required looking at three specific provisions of the Regulation: sections 222(4), 93 and 226. Section 222(4) stated that any money recoverable by the Committee under section 222(1) would be recovered as if it were a tax imposed by the Committee on the property, and that the amount would be charged accordingly. Section 93 dealt with appeals against taxation. Sub‑section 1 of section 93 provided, among other things, that an appeal against the assessment or levy of any tax under the Regulation could be made to the Deputy Commissioner or to any officer empowered by the State Government for that purpose. The remaining five subsections of section 93 laid down the procedure for trying and disposing of such appeals. Consequently, if the amount recoverable from the appellant by the Committee was treated as a tax under section 222(4), an appeal against that levy would be permissible under section 93(1). This connection between the provisions formed the basis of the Court’s inquiry into the appellant’s right to contest the demand.

The Court then considered the argument advanced by counsel, who contended that section 93(1) only allowed an appeal against the levy of a tax and drew a distinction between an amount deemed to be a tax and an amount actually recoverable as a tax. The Court rejected that distinction, emphasizing that the legal fiction created by section 222(4) required full effect to be given to the characterization of the amount as a tax. As a result, the procedural mechanism provided by section 234 for recovery became applicable, and the right to appeal prescribed by section 93(1) also attached to the appellant. The Court further relied on section 226, which expressly provides that when an order of the kind mentioned in section 222 is subject to appeal and an appeal has been instituted, all proceedings to enforce the order are suspended pending the appellate decision, and disobedience of the order is not deemed an offence if the order is set aside on appeal. This provision clearly postulated that an order passed under section 222 is appealable, thereby confirming that the appellant could invoke the appeal process under section 93(1) against the Committee’s demand. The Court concluded that, read together, sections 222, 93 and 226 left no doubt that an appeal lay against the demand made by the Committee, rendering the argument for a liberal construction of section 234 untenable.

In this case, the Court observed that section 222 is appealable and that it provides that if an appeal is made against an order under that section, further proceedings must be stayed. The Court noted that it is an agreed point that the Regulation contains no other provision for an appeal against an order made under section 222(1). Consequently, the Court said that reference must be made to section 93, which supplies a mechanism for appealing the levy of a tax. The Court dismissed the argument that, although section 226 assumes an appeal against an order made under section 222(1), the Legislature had forgotten to provide such an appeal. The Court therefore expressed the view that, when sections 222, 93 and 226 are read together, the result is unavoidable: an appeal under section 93(1) lies against the demand issued by the Committee to the owner of the property under section 222(1). The Court added that, if this interpretation is accepted, the principal argument advanced in support of a liberal reading of section 234 becomes untenable. Turning to section 234, the Court explained that the proceedings commenced before a Magistrate are merely recovery proceedings. The Court held that any question that can legitimately be raised about the validity of the notice served under section 153 or about the validity of the Committee’s claim under section 222 must be raised in an appeal under section 93(1). The Court further stated that if no appeal is filed, or if an appeal is filed and dismissed, those issues are finally decided and cannot be re‑raised in proceedings under section 234. For this reason, the Court described the enquiry contemplated by section 234 as narrowly limited and, on its face, more akin to a ministerial enquiry than to a judicial enquiry. The Court also found it difficult to characterize the Magistrate who entertains the application as an inferior criminal court. The claim before the Magistrate concerns the recovery of a tax, and the relief sought is the recovery of that tax by distress and sale of the defaulter’s movable property. The Court observed that, at most, such a proceeding is civil in nature and not criminal. Accordingly, the Court concluded that irrespective of whether the proceedings are purely ministerial, judicial or quasi‑judicial, the Magistrate acts because he is designated for that purpose and must be regarded as a persona designata, not as a Magistrate exercising authority under the Code of Criminal Procedure. Consequently, the Magistrate cannot be treated as an inferior criminal court. The Court noted that this view coincides with the decision of the High Court and that there is no reason to depart from it. Finally, the Court said that in the present appeal it was unnecessary to examine the character of proceedings that might be instituted before a competent Civil Court under the proviso, and that, on the face of it, such proceedings could be

The Court observed that the matter could be described only as execution proceedings. Counsel for the appellant, Mr. Chatterjee, contended that the proceedings instituted under section 234 against the appellant by respondent 2 were incompetent because respondent 2 had not made a demand on the appellant in the manner prescribed by the rule required under section 234. It appeared that no rules had been framed under the Regulation, and consequently no form had been prescribed for making a demand under section 222(1). The argument therefore proceeded on the premise that, unless the rules were framed and a notice form prescribed for a demand under section 222(1), no demand could be said to have been made in the manner prescribed by the rules, and consequently an application could not be brought under section 234. The Court identified two straightforward responses to this contention. First, if the revisional application filed by the appellant before the High Court were incompetent, that issue could not have been raised before the High Court because it was part of the merits of the case; therefore it could not be agitated before this Court either. Moreover, once it is held that the magistrate was not an inferior criminal court, the revisional application filed before the High Court must be regarded as incompetent and should be rejected on that preliminary ground alone. Second, on the merits the Court found no substance in the argument. The absence of framed rules merely means that no specific form is prescribed for issuing a demand notice; it does not render the statutory power conferred on the Committee by section 222(1) unenforceable. Accordingly, the notice served by respondent 2 authorised respondent 2 to carry out the necessary repairs at its own expense and to demand reimbursement of those costs. This is the plain effect of the relevant provisions of the Regulation, and an amount claimable under section 222(1) does not cease to be claimable merely because the rules prescribing the form of the demand have not been framed. In the Court’s opinion, therefore, the contention that the application made under section 234 was incompetent must be rejected. The Court then turned to several decisions that had attracted its attention. In Crown through Municipal Committee, Ajmer v. Amba Lal, the Judicial Commissioner, Mr. Norman, held that a magistrate entertaining an application under section 234 of the Regulation is an inferior criminal court. The sole justification offered for this view was that the magistrate before whom an application under the said section is made is appointed under the Code of Criminal Procedure, and therefore he constitutes a criminal court even though he is not dealing with a crime. Consequently, it was held that the magistrate possessed jurisdiction to determine whether the conditions permitting the municipality to resort to the magistrate were satisfied. The Court concluded that this decision does not correctly represent the true legal position regarding the character of the proceedings under section 234 and the status of the magistrate who entertains them.

The learned Judicial Commissioner concluded that a revision of the Magistrate’s order was permissible. In the Court’s view this conclusion did not correctly reflect the true legal position concerning the nature of the proceedings that arise under section 234 and the status of the Magistrate who conducts those proceedings. The Court then examined several earlier decisions. In Re Dinbai Jijibhai Khambatta (2) the Bombay High Court had held that an order made by a Magistrate under section 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) could be revised by the High Court under section 435 of the Code of Criminal Procedure. That decision was founded on the observation that the first part of section 161 was purely judicial, and the Court deemed that the second part, although not expressly judicial, should be treated as having the same character as the first part. Consequently the Court’s reasoning turned on the nature of the provisions contained in section 161(2). In V. B. D’Monte v. Bandra Borough Municipality (1) a Full Bench of the Bombay High Court, while considering the corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely section 110, held that when the High Court exercised its revisional jurisdiction under section 110 it was exercising a special jurisdiction conferred by that section and not the jurisdiction conferred by section 435 of the Code of Criminal Procedure. According to that decision the matter presented before the High Court in such a revision was of a civil nature, and therefore the revisional application lay before the High Court on its civil side rather than on its criminal side. The Court noted that the contrary view expressed in Emperor v. Devappa Ramappa (1) was not followed. In Re Dalsukhram Hurgovandas (2) the Bombay High Court considered the nature of the proceedings contemplated by section 86 of the Bombay District Municipal Act III of 1901. Under that section a Magistrate was empowered to hear an appeal specified in the provision, and the Court held that, in hearing those appeals, the Magistrate acted merely as an appellate authority dealing with questions of civil liability. Accordingly the Magistrate was not an inferior criminal court and his orders were not subject to the revisional jurisdiction of the High Court under section 435 of the Code of Criminal Procedure. The Madhya Bharat High Court faced a similar issue under section 153 of the Gwalior Municipal Act (1993 Smt.) in Municipal Committee, Lashkar v. Shahabuddin (3). Under that provision a Municipality could apply for recovery of the cost of work from a defaulting person, and the Court held that the order issued in those proceedings could not be revised by the High Court under section 435 because the order was an administrative one.

In its discussion, the Court observed that the order in question was an administrative order and that there was no doubt that the magistrate who passed it did not function as an inferior criminal court. The Court then referred to the decision in Mithan Musammat v. The Municipal Board of Agra & Anr., (4) in which the Allahabad High Court held that a magistrate who passes an order under section 247(1) of the United Provinces Municipalities Act, 1926 does not act as an inferior criminal court within the meaning of section 435 of the Code of Criminal Procedure. The Court noted that the decision in Madho Ram v. Rex, (1) expresses the same principle. The purpose of citing these authorities was solely to illustrate that, when dealing with similar statutory provisions under municipal law, various High Courts have taken the view that magistrates entertaining recovery proceedings under the relevant statutes are not inferior criminal courts under the Code of Criminal Procedure. The citations that accompany this observation are (1) (1918) 43 Bom. 607., (3) A.I.R. (39) 1952 M.B. 48., (2) (1907) 6 Cr. L.J. 425., (4) I.L.R. (1956) 2 All. 60., and (5) I.L.R. (1950) All. 392. While these decisions were mentioned, the Court made clear that it was not expressing any opinion on the correctness or otherwise of the views adopted by the different High Courts on the questions that had been raised before them. Consequently, the Court concluded that the appeal could not succeed, ordered that the appeal fail, and directed that it be dismissed. The appeal was therefore dismissed.