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TMI Blog1965 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 designata and therefore his order is not revisable under Sections 435/439 of the Code of the Criminal Procedure. The Sessions Judge and the High Court therefore had no jurisdiction to interfere with that order under Sections 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate having jurisdiction in the cantonment or in any place where the person from whom such tax, rent or money is recoverable may for the time being be residing, by the distress and sale of any movable property of, or standing timber, or growing crop belonging to such person which is within the limits of such magistrate's jurisdiction, and shall if payable by the owner of any property as such, be a charge on the property until paid; provided. . . . (2)* * * 5. The first question that arises is whether rent on land and buildings mentioned in the section is governed by the words recoverable by a Board or a Military Estates Officer under this Act or the rules made thereunder . There is no doubt that any tax and any other money mentioned in the section are governed by the words recoverable by a Board etc. It seems to us that the words rent on land and buildings which appear between the words any tax and any other money must equally be governed by the words recoverable by a Board etc. Therefore the provision of s. 259 of the Act can be utilised for realisation of arrears of rent on land and buildings only if such rent is recoverable by a Board or a Military E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able of rents; r. 9(6) vests the management of class 'C' land in the Board; r. 26 provides for disposal of land by private agreement; r. 28 for execution of leases, Rules 29 and 30 for maintenance of grants registers of building sites; r. 31 for leases for special periods and on special terms; r. 32 for agricultural land leases; r. 34 for record of agricultural leases; r. 35 for execution of agricultural leases; r. 37 for leases for miscellaneous purposes and r. 41 for special conditions in leases. It may be mentioned that originally there was a rule (r. 42) in these terms :- Recovery of arrears - All arrears of rent and other payment under these rules together with interest on such arrears at the rate of seven and half per cent per annum from the date when they become due to the date of their realisation, shall, on the application of the person specified in sub-section (2) of section 259 of the Act, or of the Military Estates Officers, as the case may be, recoverable in the manner provided in that section. 7. That rule however no longer exists as it was repealed in 1940. 8. There is no doubt that in view of the provisions of the Act, the Property Rules and the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that there is no case where the Act does not provide for claim of rent by the Board. We may add that there may be other cases like this either under the Act or under the Rules. In our view it is in such cases where the Act or the Rules in terms make the rent on land and buildings claimable by the Board that s. 259 will apply. But where the liability to pay rent arises purely on the basis of a lease between the Board and the tenant, nothing in the Act or the Rules has been brought to our notice, particularly after r. 42 referred to above has been repealed, which makes such rent claimable by the Board under the Act or the Rules. We may add r. 42 was repealed long before 1954 when the words rent on land and buildings came in s. 259. So it cannot be argued that the omission of r. 42 was due to the amendment of 1954. 10. It is urged that the section provides for recovery by suit also and as such it will not be possible for the Board to recover rent of land and buildings let out by it even by suit if the rent in the section refers only to rent directly claimable under the Act or the Rules. This is clearly incorrect. The section does not bar the right of the Board as an owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Ambala Cantonment [A.I.R. 1933 Lah. 517] accepted the reference and set aside the order of the Magistrate. By special leave the Cantonment Board has come up to this Court in appeal. 14. Two points were urged by Mr. Gopal Singh appearing for the appellant. The first is that the proceeding before the Magistrate was not one under the Code of Criminal Procedure and, therefore, neither could a reference be made by the Sessions Judge to the High Court under s. 438, Cri. P.C. nor could an order be made by the High Court under s. 439. The second point is that upon a correct interpretation of s. 259 of the Act the Magistrate had the power to recover the rent due to the appellant in the manner provided for in the section. We did not allow the first contention to be raised for two reasons. In the first place the point was not raised in the High Court and in the second place it would not be fair to the respondent who is ex parte to have the appeal divided upon a new ground altogether. 15. In so far as the second point is concerned it seems to me that the contention of Mr. Gopal Singh is correct and that the High Court was in error in setting aside the order of the Magistrate. The two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It sets out two methods : one is institution of a suit and the other is making of an application to a Magistrate. Therefore, where rent of land or building under the management of the Cantonment Authority falls to be recovered resort could be had either to a suit or to summary proceeding as provided in the section. But if the expression rent is confined to money due under some express provision of the Act is will lead to a curious result. Thus in respect of rent of land or buildings under the management of the Board neither remedy would be available - though the claim for the rent is ultimately traceable to those provisions of the Act and the Rules which empower the Board to let out the land or buildings - upon the ground that it cannot be said to be claimable or recoverable under any express provision of the Act. Surely the Legislature could never have meant that even a suit for recovery of rent would be maintainable at the instance of the Board only if it was for the purpose of recovery of rent from a tenant who was liable under an express provision of the Act or the Rules to pay rent to the Board. Under Sections 116 and 116A of the Act, read along with Cantonment Land Adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a Military Estates Officer . It was necessary to make this provision because certain duties are imposed and powers conferred on the Board and certain other duties imposed and powers conferred upon the Military Estates Officer and the section makes it clear that the power to recover money is exercisable by such of these two authorities as performs the duty or exercises the power by reason of which the liability of another to pay the tax, rent or any other money arises. 20. In support of the view which I have expressed I may refer to a decision of the Court of Appeal in Tideway Investment and Property Holdings Ld. v. Wellwood [1952] 1 Ch. 97 There one of the questions which had to be considered related to awarding costs to the successful plaintiffs who were the landlords of the defendants. The suit was brought in the High Court and the plaintiffs contended that since the defendants have committed a breach of the provisions of the lease they had forfeited it and, therefore, were entitled to possession on forfeiture as also to damages for breach of the contract contained in the lease. The defendants claimed protection of the Rent Acts and Harman J., who heard the case held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g done by the Board or the Military Estates Officer in exercise of a power or the performance of a duty under the Act that liability can be enforced by the authority concerned either by instituting the suit or by making an application to a Magistrate. 23. Further, if the word 'rent' in s. 259 of the Act were to be given a restricted meaning that word itself would be rendered otiose because there is no provision whatsoever in the Act which expressly makes rent claimable or recoverable by either of the two authorities specified therein. Our attention was drawn to s. 257(1) which without its proviso reads thus : If any such notice as is referred to in section 256 has been given to any person in respect of property of which he is the owner, the Board may require any occupier of such property or of any part thereof to pay to it, instead of to the owner, any rent payable by him in respect of such property, as it falls due, up to the amount recoverable from the owner under section 256. 24. It cannot, however, be said that what the Legislature had in contemplation when it amended s. 259 by adding the word rent therein was rent to which reference is made in s. 257(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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