P L D 1952 Baluchistan 22 (PLP)

For facility of reference section 97, British Baluchistan Bazar Regulation and the order of the Magistrate are reproduced below :‑ Section 97.‑"Any arrear of any tax or any fee or other money claimable by or on behalf of the Deputy Commissioner may, in addition to any manner provided under section 88, be recovered on application to a Magistrate having juris diction within the limits of the Bazar by the distress and sale of any movable property within hose limits belonging to the person from whom the money is claimable ; and if payable by the owner in respect of any property, movable or immovable, such arrear shall be a charge on the property." ORDER.‑"It is contended on behalf of Bazar Fund that the claim for the amount in dispute was made on the Supply Department first. Now by the means of this application it is sought to be recovered only from Syed Muhammad Hasan Shah contractor. This raises an important and complicated question as to whether the Supply Department or Syed Muhammad Hasan Shah contractor is liable to pay this amount. I think it would be most fair and would be contrary to justice if I were to decide this matter summarily without referring the parties to a Civil Court of law where the question of liability would be completely and effectually adjudicated. I therefore reject the application and direct the Bazar Fund that a civil suit may be filed for the recovery of this amount." It is first necessary to examine what the powers of a Magis trate are when he is required to act under section 97 and my attention has been invited to three important rulings by my learned predecessors on this point (34 of. 1932, 52 of 1933 and 25 of 1939). It has been held on each occasion that the duties of a Magistrate must be confined to mechanical compliance with the provisions of this section and that he is precluded from making inquiries into, or adjudicating upon, a question which is not before him. I am in full agreement with the views expressed, for the British Baluchistan Bazar Regulation contains no provision which allows a Magistrate to make inquiries onto refer the' matter to a Civil Court. The question next arises as to whether a High Court has powers to interfere in revision in such cases. The generally ac cepted principle is that a Magistrate, in exercising powers under section 97, B. B. B. R. is acting in an executive or ministerial capacity and not as a Magistrate ; and that since the orders are not those of a Magistrate they cannot be revisable by virtue of the powers conferred by section 439, Cr. P. C. In agreeing with the principle generally it would however, in my view, be dangerous to lay down a rigorous rule which permitted of no exceptions. For while I have held that the duty of the Magis trate must be confined to mechanical compliance with section 97, in any case where the Magistrate clearly exceeds his powers, it must ‑be left to the decision of the High Court to set aside an order by revising proceedings where the decision is clearly ultra vires of the powers of the Magistrate. I am sup ported in this view by my learned predecessor, Acheson, J. C., in Criminal Appeal 25 of 1939 in which he states that while this Court does not enjoy revisional jurisdiction in cases under the British Baluchistan Bazar Regulation where the Magistrate recovers arrears regularly claimed, the revisional powers of this Court will be attracted if the Magistrate acts in excess of the powers conferred on him. In the case before me the order of the Magistrate, of which revision is sought, is clearly in excess of the powers conferred on him by section 97, B. B. B. R. On behalf of the respondent it has been urged that the claim against him is improper inasmuch as he was acting as an agent for the Food Directorate and that the claim was against the Directorate. However that may be, I am not prepared to adjudicate on this representation, for the Directorate have not been represented in these proceedings, and this matter must, in any case, be left for adjudication by a competent Civil Court if the respondent wishes to pursue the matter further. This plea cannot be taken as an argument in favour of the respon dent in the case of this revision petition which is confined to proceedings between the Deputy Commissioner as petitioner and the respondent only. It has been further urged that if the respondent is obliged to approach a Civil Court he will be at a disadvantage and that it is open to the petitioner to do so. This argument has been supported by A I R 1934, Sind, p. 78 (1) in which it was held that no petition for revision will be entertained if an other remedy is open to the petitioner. In assessing the occasions on which revision proceedings are entertainable I am in entire agreement with the views expressed in the above ruling. But the case before me is of a different nature altogether. Powers have been conferred on the Deputy Commissioner to collect arrears of taxes or dues through a Magistrate and it would defeat the very object of the Regulation if I were to hold that where recovery was opposed by any person the onus of proving the legitimacy of the claim in a Civil Court was placed on the Deputy Commis sioner concerned. In that event it would give every scope to those assessed to compel the Deputy Commissioner to resort to the lengthy process of civil litigation to recover outstanding dues. I do not of course presume that every claim made by a Deputy Commissioner is necessarily correct. Occasions may arise in which claims may be made from the wrong person ; or that they may be excessive ; or, in other ways, erroneous. But, as I have already held, the Magistrate, must fulfill his duties without question of the case. He certainly has no discretionary powers which would allow him either to reject the claim or to refer the parties to a Civil Court. Finally, it is necessary to see whether the assessee has any means 'of redress in a case where he considers the claim made against him is improper. There is no doubt that he is at liberty to approach a Civil Court of competent jurisdiction. Learned counsel for the respondent argues that the disadvantages which will accrue to his client in this particular case are that his movable property will be sold before he is able to seek redress in a Civil Court. I am, however, unable to" subscribe to this view. In the light of the 'views stated above, I must hold that the order of the Magistrate complained of is ultra vires of the powers conferred on him by section 97 of the British Baluchistan Bazar Regulation and must be set aside. I accordingly accept the petition and direct that the order of the Magistrate is set aside. The Magistrate will proceed to comply with the appli cation of the Deputy Commissioner while it will be left to the respondent, if so advised, to approach a Civil Court for redress. The petitioner has claimed costs, but since these are pro ceedings under section 439, Cr. P. C. "the question of costs does not arise. I therefore make no order in this respect.