CANTONMENT BOARD AMBALA Vs. PYARE LAL

JUDGEMENT

(1.) This appeal by special leave raises the question of the interpretation of S. 259 of the Cantonments Act No. II of 1924, (hereinafter referred to as the Act). The respondent was a tenant of the appellant. An application was made by the Cantonment Executive Officer, Ambala, on January 7, 1960, for realisation of a sum of Rs.649.50 from the respondent under S. 259 of the Act on the ground that the amount was due as arrears of rent on the basis of a lease in favour of the respondent. The respondent apparently questioned the jurisdiction of the Magistrate to realise the amount. The Magistrate held that he had jurisdiction and issued warrants for attachment of the movable property of the respondent on June 13, 1961. Thereupon the respondent went in revision to the Sessions Judge, Ambala, contending that the Magistrate had no jurisdiction to realise the arrears of rent due under a lease under S. 259 of the Act and in any case that could not be done without taking into account the objections of the respondent. The Sessions Judge following certain earlier decisions of the Lahore High Court took the view that rent under a lease could not be recovered under S. 259 of the Act and made a reference to the High Court under S. 439 of the Code of Criminal Procedure. The High Court heard the reference and accepted the view of the Sessions Judge and set aside the order of the Magistrate dated June 13, 1961. The High Court having refused the certificate, the appellant obtained special leave from this Court; and that is how the matter has come up before us.

(2.) Two questions have been raised by learned counsel for the appellant in this appeal. In the first place, he urges that the Magistrate when he is acting under S. 259 of the Act is a persona designate and, therefore, his order is not revisable under Ss. 435/439 of the Code of Criminal Procedure. The Sessions Judge and the High Court, therefore, had no jurisdiction to interfere with that order under Ss. 435/439 of the Code of Criminal Procedure. Secondly, it is urged that the view taken by the High Court that arrears of rent due under a lease cannot be recovered under S. 259 of the Act is incorrect.

(3.) The question as to the jurisdiction of the Sessions Judge and High Court was never raised before the appeal in this Court. Learned counsel however, refers on the Dargah Committee, Ajmer vs. State of Rajasthan (1962) 2 SCR 265 in support of his contention that the Magistrate acting under S. 259 of the Act, acts as a persona designata and, therefore, his order under that section is not revisable under Ss. 435/439 of the Code of Criminal Procedure and the Sessions Judge and the High Court had no jurisdiction under those provisions to interfere with such an order. The case cited on behalf of the appellant certainly supports the contention put forward; but in the circumstances of this case we are not prepared to allow this contention to be raised at this stage. It is true that a question of jurisdiction, not depending upon facts to be investigated, can be allowed to be raised at any stage. Ordinarily if we were satisfied that the High Court had no jurisdiction at all to interfere we would have allowed this question to be raised even at this late stage. But we are of opinion that though the High Court may not have jurisdiction to interfere under Ss. 435/439, Code of Criminal Procedure it could certainly interfere with the order of the Magistrate under Art. 227 of the Constitution. Now if this point had been raised before the High Court it may very well be that the High Court might have considered the reference as if it was an application before it under Art. 227 of the Constitution, in which case the High Court would have jurisdiction to interfere with the order of the Magistrate if it came to the conclusion that the Magistrate had no jurisdiction in such circumstances under S. 259 of the Act. In these circumstances we are not prepared to permit the appellant to raise this point before us at this late stage.