HIMMAT SINGH Vs. VAZIRUDDIN

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Bikaner in connection with certain orders passed by the Tehsildar-Magistrate of Bikaner under Bikaner Notification No. 19 of 17th March, 1947. THIS Notification gave power to Magistrates of the First and Second Class to order vacation of houses under certain conditions.

(2.) A preliminary objection has been taken on behalf of the opposite party that in view of the coming into force of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) , the present revision does not lie to this Court. So far as this preliminary objection is concerned, it is sufficient to say that a Division Bench of this Court decided on 12th of April, 1950, in criminal revision No. 57 of 1949 (Manak Chand V. Bansidhar) that orders passed by Magistrates under Notification No. 19 of the 17th March, 1947, were in their capacity as courts, and were, therefore, revisable by the Sessions Judge and this Court. At one stage, I had a doubt whether Magistrates, who passed orders under that Notification, could be deemed to be courts or could only be persona designate. But on reading the Notification I find that the words ' Court of a Magistrate ' appear in rule 4, and thereafter the word 'court' is repeated more than once in subsequent rules of the Notification. It seems, therefore, that the intention was to confer these powers on courts of Magistrates, and perhaps this was done in order that there might be revisionary powers in the Sessions Court and the High Court, as the Notification itself provided no powers of revision or appeal against such orders of Magistrates. It is hardly likely that the former Bikaner Government intended to give absolute powers to Magistrates in the matter of eviction, and that may explain why the word 'court' was used in many of the rules, and, therefore, I am of opinion that the order passed by the Magistrate under that Notification must be held to be an order by the Court of a Magistrate of the Second Class. In that view of the matter, it is immaterial what provisions have been made under the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950), for once it is established that the original order was passed by the Court of a Magistrate of the Second Class, revision would lie to the Sessions Judge under Sec. 435 of the Code of Criminal Procedure, and thereafter to this Court. I therefore, over-rule the preliminary objection.