1973 P Cr (PLP)

KH. MUHAMMAD YUSUF SARAF. J.-This inter-Court appeal has been filed against a judgment given by my Lord the Chief Justice on 2-4-1970. Brief facts are that in land measuring 6 kanals under survey No. 1754/ 1220 situate in Muzaffarabad Town out of which 3 kanals and 8 marlas was requisitioned by the Government for the National Bank of Pakistan who have since constructed their own building thereon, the petitioner is an allottee of one kanal and pup marls, The dispute between the parties concerns 8 marlas of the same number which both of them claim to be in their possession. When the Bank started construction of a wall the petitioner filed a suit ultimately in the Court of Sub-Judge and obtained an injunction order restraining the Bank front entering upon the land in dispute. Meanwhile the petitioner appears to have started some construction on the 8 marlas in dispute whereupon the National Bang Manager made an application, which is at page 51 of the file, bringing the facts as they saw them to the notice of the District Magistrate and requesting that the unauthorised construction may be demolished immediately and the land cleared. The District Magistrate wrote to the Superintendent of police to stop construction immediately. This order was passed on the 7th of January 1970. The petitioner then moved for cancellation of the order and the D. M. vide his order dated 28-2-70 after issuing notices to the parties and hearing them, passed the order in dispute. In this order he says that he had passed the order of stay `just to save a clash between the parties and it had nothing to do with the determination of the rights of the parties'. Then he proceeds to say "under these circumstances I feel that I have no authority under law to maintain my order passed on 7-1-70. Thus I cancel my order passed on 7-1-70. The parties are, however, directed that they will not take law and order in their own hands but they will proceed in due process of law regarding getting the possession of land." The petitioner was aggrieved by this order on the ground that he having been dispossessed by the District Magistrate the latter was bound to restore possession to him after he had no authority to pass it. The petitioner, therefore, came in revision to the High Court and his petition was dismissed on the ground that the District Magistrate's order was an executive order and. therefore, not open to revision by the High Court. It is against this judgment that the present appeal has been filed in this Court. Two questions have to be decided in this case which are:- (i) Is the order of the District Magistrate an executive order not revisable by the High Court? (ii) If not whether the petitioner is entitled to possession of the disputed land? I have given my earnest consideration to the question as to whether the order under appeal is or is not an executive order and have come to the conclusion that it cannot be termed as an executive order. Section 435 of the Criminal Procedure Code is reproduced below:- "The High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the provincial Government in this behalf, may call for and examine he record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction or the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record." It will thus be seen that the High Court has been armed with the powers of revision only if the order complained against was passed: -- (i) In any proceedings; and (ii) by an inferior criminal Court. The word 'proceeding' has not been defined anywhere in the Act itself, section 4 (m) of the Criminal Procedure Code however defines a judicial proceeding as including any proceeding in the course of which evidence is or may be legally taken on oath. In the Code of 18611 no definition of the 'judicial proceeding' was given. It was defined for the first time in the Code of 1872. Among the changes brought about in the Code of 1898 was that the word 'includes' was substituted for the word 'means'. This shows that the framers of the Code intended to give the term a very wide meaning. It has, therefore, been held that the test whether a proceeding is or is not a judicial proceeding within the meaning of the definition in this clause is whether in the course of the proceedings tae Presiding Judge has the power legally to take evidence on oath and not whether he had actually taken such evidence. Reliance may be placed on Chanan v. Emperor (1910 P. R. 1). The dispute between the parties related to a piece of immovable property and the District Magistrate was empowered under section 145 of the Criminal Procedure Code to take cognizance of the dispute and determine the rights of the parties pending a final decision by a civil Court of competent jurisdiction. The District Magistrate's admission In his order that he had passed an order of stay to prevent a clash between the parties clearly shows that he was acting under section 145, Cr. P. C. because it is only when there exists a danger of breach of peace, with regard to the possession of some immovable property that the Magistrate gets jurisdiction of interference under section

145. It is true that the District Magistrate has not recorded any evidence or come to any finding but that by itself would not take the proceedings taken by him out of the ambit of being termed as 'judicial proceedings' because as shown above the test is not as to whether he recorded evidence on oath but as to whether' in such a proceeding he could under law take such evidence. It goes without saying that a Magistrate is empowered to record evidence on oath under section

145. Under these circumstances I have no doubt that the proceedings taken b y the District Magistrate in this case are judicial proceedings within the meaning of section 4 (m) of the Cr. P. C. The next question to be determined is as to whether the 13istrict Magistrate while taking these proceedings was acting as an inferior criminal Court within the meaning of section 435, Cr.P. C. or outside it. The D. M. no doubt, has certain executive powers but what is important is that these executive powers do not exist in the air and all such powers have to be traced try some statute or to some rule having the force of law. The District Magistrate is the creation of a statute and to hold that he has any divine right of kings with regard to his powers would be highly illegal and untenable. Whenever the D. M. exercises executive powers these can surely be traced to some 'statue or rule made by the Government. The question has come up before various High Courts throughout the sub-continent. I have gone through more than a dozen cases but I was not able to find out even a single case where the powers of the .D. M. termed as executive powers, were not traceable to some statute or rules having the force of law. For instance in A I R 1929 All. 931 Madsudan Lal was ordered to be prosecuted by the Returning Officer of Etmadpur for giving false information with regard to the preparation of electorinal lists under the local self-Govern ment. He filed an appeal to the D. M. who held that- be had no jurisdiction in the matter. On a revision being filed in the High Court Justice Dalal held that: - "When exercising jurisdiction under the Election Rules of the District Board, the D. M. does not act as a criminal Court but acts as an authority to the Returning Officer is subordinate." It means, that according to the High Court the D. M. in the particular case was not inferior to the High Court within the meaning section 435 and, therefore, not an inferior criminal Court within the meaning of section 435, Cr. P. C. In A I R 1934 All. 148, a warrant had been issued by the Political Agent of the Punjab State under the Extradition Act for the arrest of one Sandal Singh of Dehradun, under sections 419 and 477-A. 'File D. M. just forwarded it to the S, P. for necessary action. On a revision filed to the High Court the High Court interfered under section 491 holding the warrant illegal but Justice Sulaiman also held: -- "It is clear that the District Superintendent of Police has just as much authority as the D. M. to cause such a warrant to be executed. It cannot for a moment lie contended that the act of the police officer ordering the execution of such a warrant would be either a judicial act or a proceeding in an inferior criminal Court. It would, therefore, follow that when a Magistrate does the same thing namely orders execution of the warrant, it cannot be `said that he is acting in his judicial capacity or that he is' for the time being a Court of inferior Criminal jurisdiction. It is quite clear, that a Magistrate's order that a warrant be executed is as more executive act which he is bound to perform as required by section 7,.Extradition Act," '' Even in such circumstance the Bombay High Court in a case reported as A I R 1929 Bom. 81 has a taken different view and held that even the execution of the warrant issued from a native State under the Extradition Act was a judicial act and not an executive one. In this case a warrant for the arrest of one Mabel Feriz alias Aisha Bai was issued by the Resident of Baroda. She was arrested in Bombay and went in revision to the High Court. Justice Mirza delivering the judgment held: - "With great respect the proposition laid down in Gull! Shahu v. Emperor 7 Dom. L R 463 appears to me to be too wide and should be confined to the facts of that case. The intention of the Legislature in referring the extradition warrant to the D. M. or the Chief Presidency Magistrate for arrest is that the Magistrate should judicially consider the matter and decide whether the warrant can be executed according to law. The execution.- of the warrant depends not upon the order of the Political -Agent or Resident but upon the orders of the D. M. or the Chief Presidency Magistrate as the case may be . . . . . . . . . . .Any order judicially made by the Magistrate would be subject to the revisional power of this Court under section 439, Cr. P. C. There is great force in this ruling and it has greater appeal to one's commonsense because so long as a District -Magistrate does not order execution of the warrant it has no legal sanctity and is of no value within his territorial jurisdiction." Another case is A I R 1946 Dom.

533. It is a Full - Bench Authority. In this case upper sub-rule (2) of rule 81 of the Defence of India Rules a portion of the applicant's house at Ahmedabad was ordered by the D. M. to be given to a District Inspector of Laid Records. -The order was held to be executive one because: - "The D. M. has exercised merely the authority delegated by the Provincial Government which in its turn derived its authority from the Central Government under the Defence of India Rules . . . . . . . . The use of the expression 'Officer or Authority' suggests that the application of powers is not to Court but to a person who can be entrusted with the powers of exercising the specific authority in question. As the Central Government is manifestly not a Court, it seems to us impossible to hold that either its agents or delegates can be recorded in any sense as such." In this ruling reference was also made to D. M.'s powers under the Police Act and the Arms Act. Another ruling is A I 8 1933 Dom.

59. A Railway Magist rate had fined someone who was travelling W. T. held that it was a judicial proceeding of an inferior criminal Court: - "I may refer in this connection to the case of Emperor v. Devappa Ramappa A I R 1919 Born. 158 where the test laid down is not the nature of the proceedings held by the Court but nature of the Court in which that proceeding is held." In A I R 1919 Bore. 93 it was held that where the Magistrate had to make some enquiry in a proper case there is no reason to hold such an enquiry as purely ministerial: "Proceeding is a very wide term and would include any judicial proceedings taken-before any inferior criminal Court even though it may not relate to any specific offence." In A I R 1933 All. 281 the Muncipality of Benaras held, certain electric goods dutiable. The D. M. on appeal set it aside; the Municipality went in revision to the High Court but failed because die High Court held that the order of the D. M. was not an order passed by an inferior Court within the meaning of section

435. It held: - "What one has to see is in what capacity he purported to act and I have no doubt that in the present case the D. M, purported to act under the Municipality Act." In A I R 1930 Bom. 486 a petition for compensation on behalf of a widow under section 45, City of Bombay Police Act was dismissed by the Chief Presidency Magistrate. On revision the High Court held: - "The conclusion, therefore, is that the special powers under section 45 is not as criminal Court but as a persona designata. If so, no application by way of revision lies to this Court." In A I R 1939 Sind 340 the District Magistrate passed an order under rule 17 of the rules for Licensing and Controlling placed on public entertainments. It was held by the Chief Court:- "In our opinion he is acting as an executive officer in the exercise of powers conferred upon him under section 39-A, Bombay District Police Act." In A I R 1939 All. 124 the A. D. M., Naini Tal passed an order under section 4, U. P. Niak Girls Protection Act requiring 3 girls to be sent to the settlement at Haldawani to be detained there until they attained majority. The allegation against them was that they were being trained for prostitution. The High Court rejected the petition holding that the power was of an executive nature given by the Niak Girls Protection Act and, therefore, while exercising these powers the A. D. M. was not acting as an inferior criminal Court. In A I R 1964 Mad. 185 it was held: "A Magistrate may be acting in his judicial or administrative capacity. It is only when he acts in the judicial capacity that he can be termed as an inferior criminal Court whose order is open to revision. He is acting judicially within the meaning of section 4 (m), Cr. P. C. if he hears the parties and makes an order which affect: the rights of the "parties." It is, therefore, clear that if a Magistrate's order has to be termed as an executive order; the authority to pass such an order must be traced to some Act or Rule having the force of law. In the absence of such statutory authority it cannot be held that the order passed by him is an executive order. When a Magistrate passed an order it can be presumed that he had Paged it is a judicial proceeding and is his capacity as an inferior criminal Court within the meaning of section 435 unless it can be shown that it was passed in some other capacity. As shown above, executive orders are passed by the Magistrates in their capacity as persona designata which means that under some Acts or rules they are designated as the authority to pass certain executive orders. In this case it has "not been shown how the District Magistrate can be termed as a persona designate for passing such an order. The learned Chief Justice has held that it is not an order by an inferior criminal Court because he had not passed a preliminary order within the meaning of section 145 not called upon the parties to put in their written statements with regard to possession and had taken non-evidence but in my view absence of these matters have nothing to do with the question as to whether the proceeding was judicial proceeding or not arid as to whether in relation to these proceedings he was or not an inferior criminal Court within the meaning of section 435, Criminal Procedure Code. If a Magistrate practically proceeds under section 145 but ignores the procedure laid down by the section, it cannot be said that he did not proceed under section 145 but was acting in his executive capacity which had no legal cover at all. In order to determine as to whether a proceeding is a judicial proceeding a or not, the question as to whether the procedure prescribed in the Coda was or was not followed by the Magistrate is immaterial; failure to follow the procedure would further condeme the proceedings as being illegal but they cannot take it away from the ambit of being judicial proceedings within the meaning of section 435, Cr. P. C. Suppose a Magistrate Ist Class and not the District Magistrate had done exactly what the District Magistrate has done in the present case and the aggrieved party had come in revision to this Court. I have no doubt that the High Court would have entertained the revision and interfered in the matter. The fact that this order was passed on the proceedings taken by the District Magistrate would make no difference at all unless it was shown that under some other law than section 145 or 144, Cr. P. C. the District Magistrate was entitled to pass this order not s a Court of Justice but as a persona designate. I do not personally subscribe to the theory that while there is God on the Heavens, the District Magistrate acts as his only viceregent on earth who can do anything and pass any order just because of being the District Magistrate. He has no powers not permitted by law or in other words no powers which are expressly not granted by law; certainly he has no powers to dispossess a person of his immovable property by resorting to his so-called executive powers because by doing so he is no better than an ordinary citizen who dispossesses another man of immovable property not through recourse to law but by sheer superior force. The District Magistrate is a creature of the ' statute and he cannot be allowed to override the laws of the country. In this connection it is pertinent to point out that in the final order passed by the District Magistrate he has been described at the heading of the order as "in the Court of the District Magistrate, Muzaffarabad." He issued notices to the parties find heart: therefore, have no hesitation in coming to the conclusion them the District. Magistrate were that the proceedings taken by judicial proceedings within the meaning of section 4 (m), Cr. P. C. and he was functioning as an inferior criminal Court within the meaning of section 435, Cr. P. C. Now coming to the merits of the case itself the following facts show that the petitioner was prima facie in possession of the property in dispute at the time of the order passed by the District Magistrate on the 7th of January 1970 (1) The Government originally requisitioned only 3 kanals and 8 marlas of land for the National Bank and it was only in 1966 that on an application being made by the Bank 8 marlas more were requisitioned. Irrespective of the fact as to whether or not the second Government order was legal, it shows that the 8 marlas now in dispute did not figure in the original Government order and was clearly out of it. (2) According to the application made by the Bank on the 6th of January at least on that date the petitioner was in possession of this land because he was charted of having begun illegal and unauthorised construction on the same. (3) By his second order dated 7-1-1970 after visiting the spot the D. M. also ordered that the material from the disputed area may be allowed to be removed by the applicant. This shows that the petitioner's material lay on the plot in dispute which also shows that he was in possession of the same. The District Magistrate did not deem it fit to proceed further the matter and as a civil case between the parties was already pending in a Court of competent jurisdiction, he rightly came to conclusion that the parties should get their dispute settled there but then he had no sight whatsoever to prevent the petitioner from entering into or upon this land till the disposal this civil case. A Magistrate certainly can pass such an order but that is to be done after a proper proceeding as required by .action 145 of the Cr. P. C. The District Magistrate did not proceed to decide the case in accordance with law and did not come to any finding that the petitioner was not in possession of property' or that the possession of both the parties was doubtful and as such he should not have passed such an order. Even under section 145 the criminal Court has just to decide who was in possession of the property either on the date the application as made or two months before that and if it comes to finding that one of the parties was in such possession, the criminal Court has maintain his possession till such time as the: parties may get their dispute adjudicated upon by a civil Court; As it has been prima facie established that the petitioner was in 'possession of the plot in dispute on the day the first order was passed by the D. M. and as there is no evidence that the National Bank was in possession of this plot either on that day or at any time during, two months before, it is held that tile, petitioner was in Possession of this plot and it is ordered that the same shall be restored to him by the District Magistrate himself. The parties are free to pursue their counter-claims with regard to their rights to the plot in the civil Court. RAHIM DAD KHAN, J

I agee. Appeal dismissed.