TARACHAND Vs. KRISHNA GOPAL

JUDGEMENT

(1.) THIS case has been placed before us under the following circumstances. Krishna Gopal Vyas, opposite party No. 1 filed an application under Section 17 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called the Act) in the court of the City Magistrate, Kotah, that he was a tenant of Moolchand son of Behari Lal, opposite party No. 2 and that two rooms belonging to Behari Lal in the house, in which he resided as tenant of Behari Lal, had fallen vacant and as he needed more accommodation, he be given possession of the said rooms after determining the terms of the tenancy with regard thereto. This application was contested by Moolchand on several grounds one of which was that the rooms were required by his brother Tarachand and his sister Ramkanti Bai who are appellants in this Court. The City Magistrate granted the application of Krishna Gopal on the 24th June, 1963. Tarachand and Ramkanti Bai filed an appeal to the District Magistrate, which was dismissed on the 21st November, 1968. They filed a civil revision application in this Court for setting aside the aforesaid orders of the District Magistrate and the City Magistrate. On the 15th March. 1965, Jagat Narayan J. held that no revision was maintainable under Section 115, Criminal Procedure Code The applicants then converted their application into a criminal revision application which was heard by a learned single Judge and in his view the following question which arose in the case called for decision by a larger bench : "Whether a Magistrate exercising powers under Section 17 of the Act and the District Magistrate exercising powers under Section 22 (3) of the Act are inferior criminal courts as envisaged by Section 435, Criminal Procedure Code and thus their orders are open to revision by the High Court or not -

(2.) WE have to examine whether this Court in exercise of the powers conferred under Sections 435 and 489, Criminal Procedure Code can grant relief to the applicants. Under Section 435, Criminal Procedure Code this Court can call for and examine the record of any proceeding before any inferior criminal court. Under Section 439, Criminal Procedure Code this Court may pass orders as provided therein in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge. We have, therefore, to examine in this case whether the City Magistrate of Kotah and the District Magistrate, Kotah, while exercising powers under Section 17 and Section 22 (3) of the Act respectively in this case were Criminal Courts and their orders can be revised under Section 435 and/or Section 439, Criminal Procedure Code

(3.) THE nature of the exercise of jurisdiction by the Magistrate can be gathered from Section 17 of the Act and of the District Magistrate from Section 22 (3) of the Act. These sections run as follows : Section 17: "Power of Magistrate to require premises to be let, - (1) Whenever any premises become vacant either by the landlord ceasing to occupy the same or by the termination of a tenancy or by the eviction of a tenant or by the release of the premises from requisition or otherwise, the Magistrate may, on the application of any person standing in need of such premises for his occupation and use or otherwise, if satisfied of actual necessity serve on the landlord a notice - (i) informing him that the premises are required by the person named in the notice for the purpose stated therein, and (ii) requiring him and every other person claiming under him to appear before the Magistrate on or before a date specified in the notice and show cause against the letting of the premises to the said person. (iii) No landlord to whom a notice under sub -3. (1) is issued, shall, after the receipt thereof, lease out or otherwise dispose of the premises to or in favour of any person other than the one named in the notice unless and until the Magistrate withdraws the notice, and every such lease or disposal shall be null and void. (3) Any landlord objecting to the notice on any of grounds set forth in Clauses (h) and (k) of Section 13 may do so by application in writing made in that behalf to the Magistrate and the provisions of that section shall apply so far as they may be made applicable. (4) After such inquiry into an application under sub sections (3) as may be necessary in the circumstances of each case the Magistrate shall either withdraw the notice or shall proceed to determine the terms of the tenancy in accordance with the provisions of this Act. (5) If the person named in the notice under sub sections (1) agrees in writing to abide by the terms of the tenancy determined under sub sections (4) and satisfies the Magistrate in that behalf by means of security or otherwise, the Magistrate shall order the landlord to deliver possession of the premises forthwith to the said person and shall, if necessary, on his application place him in possession of such premises." * * * * * Section 22 (3) : "Any person aggrieved by an order of the Magistrate may, within fifteen days from the date of such order, appeal therefrom to the District Magistrate or such authority as the State Government may from time to time appoint in that behalf." On a careful examination of Section 17, it is clear that the jurisdiction exercised by the Magistrate is essentially of a civil nature. He is to determine the claim of a tenant making the application before him to obtain possession of the immovable property after serving notice to the landlord and hearing his objections and then pass an order either of withdrawing the notice or proceed to determine the terms of the tenancy in accordance with the provisions of the Act. If the applicant then agrees in writing to abide by the terms of the tenancy so determined, the Magistrate may pass orders to place him in possession of the premises. The same is true about the nature of jurisdiction exercised by the District Magistrate when he is deciding an appeal.