MUNICIPAL COMMITTEE SHIVAPURI Vs. PARSHADILAL CHATURBHUJ

JUDGEMENT

(1.) This is a reference under S. 438 of the Code of Criminal Procedure. The Municipal Committee of Shivapuri wrote to the Honorary Municipal Magistrate Shivapuri to realise Rs. 53/12/- due from Parshadilal under Section 78 of the Gwalior Municipal Act. Parshadilal by an application dated 10-8-1949 objected to the dues stating that the liability has been wrongly fixed. The municipal magistrate directed the Municipality to produce evidence, in support of the dues. As the municipal committee failed to adduce the evidence the honorary municipal magistrate dismissed the claim of the municipality. The municipal committee Shivapuri preferred a revision against the order of the Municipal magistrate before the Sessions Judge, who has made this referrence for setting aside order of the lower Court.

(2.) A preliminary objection has been raised on behalf of Parshadilal on the ground that the reference under Section 438, Cri. P. C. cannot be entertained as the proceedings are of a civil nature. Mr. Sahastrabhudhe, who appears on behalf of the municipal committee Shivapuri, contends that as the order of the trial Court is passed by a magistrate it is revisable under Section 435 of the Code of Criminal Procedure and hence the preliminary objection has no force.

(3.) It is no doubt true that under Section 435 of the Code of Criminal Procedure any proceedings before any inferior criminal Court is revisable by the High Court. But the question to consider in this case is whether realisation of a tax is a proceeding before a criminal Court. Section 78 of the Gwalior Municipal Act reads as follows : Under this section, it is no doubt the municipal magistrate who is authorised to take action. But the action is that of realising a tax. Liability to a tax is a civil matter. The realisation of the tax is also to be carried out in accordance with the provisions of the Civil Procedure Code. Consequently although an action is taken under Section 78 by the municipal magistrate, the nature of the proceedings is civil and not criminal. In the case of 'Ahmedabad City Municipality V/s. Vadilal' their lordships of the Bombay High Court observed as follows :