TMI Blog1961 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... llant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which amounted to ₹ 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. Against 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. Feeling aggrieved by the dismissal of its revision application the appellant moved the High Court of Judicature for Rajasthan in its revisional jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (4) of s. 222 provides that where any money recoverable by the Committee under this section 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 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 proviso to this section prescribes that nothing in this section shall prevent the Committee at its discretion from suing for the amount pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lays down, inter alia, that an 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 subsections of s. 93 prescribe the 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 a tax levied by the Committee, then against the levy of such a tax an appeal would be competent under s. 93(1). Mr. Chatterjee argues that s. 93(1) provides for an appeal against the levy of a tax, and he draws a distinction between the amount made recoverable as if it were a tax and the amount recoverable as a tax. His contention is that the amount which is recoverable under s. 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem.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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult 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 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. 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. In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent Civil Court contemplated by the proviso. Prima facie such proceedings can be no more than execution proceedings. Mr. Chatterjee also attempted to argue that the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ((1919) I.L.R. 43 Bom. 864) 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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