JUDGMENT : P.K. Banerji, J. This writ application is directed against an ORDER :dated 27.3.1971, passed by the Sub-divisional Magistrate, Kishunganj under the provisions of Section 138 of the Indian Railways Act (hereinafter to be referred as the Act) directing the petitioner-contractor of the Railway Refreshment Room at Kishunganj railway station to vacate the Refreshment Room there within a period of 15 days from the date of the ORDER :failing which the local police was directed to get it vacated and take possession and hand over the same to the Station Master, Kishunganj Railway Station. The ORDER :was passed on a petition filed on behalf of the Union of India through the Deputy Chief Commercial Superintendent, N. F. Railway, Maligaon, Gauhati. The prayer is to issue an appropriate writ quashing the ORDER :aforesaid dated the 27th March, 1971 (Annexure 2) on the grounds stated in the petition. 2. The petitioner's case is that he entered into an agreement with the President of India represented by his duly constituted delegate in the matter arid the agreement was renewed from time to time, (the last renewal being on the 10th of July, 1967) for a period of three years. By that agreement the petitioner obtained a lease for catering vegetarian and non-vegetarian meals and other refreshment to the passengers at Kishunganj Railway Station as also for vending by means of Dalas, wheel barrows and stalls on the premises of the said railway station in ORDER :to meet the demand of different types of passengers and in consideration to this agreement the petitioner was paying to the Railway Administration a consolidated sum reserved in the lease representing the rent for all types of vending and catering under one receipt granted for the same. The petitioner invested a huge sum of money on furniture, crockeries, utensils etc. and employed a large number of persons for executing his part of the lease as a lessee. It is said that certain interested persons in the railway at Maligaon and at Katihar, with a view to oust the petitioner inspite of the agreement, put in advertisement in the Indian Nation of 2nd September, 1967, purporting to be by the Chief Commercial Superintendent, N. F. Railway at Pandu inviting applications from the persons of catering experience for running one unit of vegetarian-cum• non-vegetarian Refreshment Room at Kishunganj Railway Station. The officers concerned were determined to throw out the petitioner from 1st October of the year. To counteract the move, the petitioner filed a suit in the Court of 2nd Munsif at Kishunganj (Title Suit No. 72 of 1967) for a declaration and permanent injunction and an ad-interim ORDER :of injunction was issued by the said court and it was made absolute on the 15th December, 1967 (Annexure 1) by which the defendants of the suit were restrained from evicting the plaintiff from the suit premises and setting up any rival catering business at Kishunganj Railway Station till the disposal of the suit. An appeal was preferred before the District Judge of Parnea (Miscellaneous Appeal No.5 of 1968) against the said ORDER :of the Munsif and on the 24th September, 1970, a consent ORDER :was passed to the effect "that the authorities concerned will look into the Circular ORDER :No. 63 T. G. III/600 dated New Delhi 8.10.1963 from the Railway Board to the Manager of all the Railways before finally deciding the case of the plaintiff-respondent in respect of the catering contract at Kishunganj Railway Station". The petitioner's further contention is that the Railway Administration of N. F. Railway instead of taking steps to terminate the aforesaid contract allowed the petitioner to continue his business in terms of the said lease and the petitioner continued in expectation of a fresh renewal in course of time and the various privileges available to the petitioner as a lessee, namely free pass to the employees in service on the railway were being renewed. No notice was issued to the petitioner that he could no longer hold over or that there was no chance of any renewal of the lease; no notice was given to the petitioner to vacate the premises concerned and all on a sudden the petitioner learnt about the filing of the application by the Deputy Chief Commercial Superintendent, N. F. Railway, purporting to be under Section 138 of the Act before the Sub-divisional Magistrate, Kishunganj, and the impugned ORDER :was passed inspite of the objections raised before the learned Sub-divisional Magistrate by the petitioner. 3. 3. The petitioner's contention is that Section 138 of the Indian Hail ways Act is not applicable to the case of the petitioner since the petitioner is not a railway servant nor is he a person 'employed' by the railways so as to attract the provision of the section; he is a lessee and a t best a tenant for the premises held over on the expiry of the terms of the lease and he could be evicted there from only under the provision of Transfer of Property Act or the like law and not definitely under the provision of Section 138 of the Indian Railways Act and in absence of any finding regarding the actual status of the petitioner vis-a-vis N. F. Railway, the Magistrate had no jurisdiction to pass an ORDER :under Section 138 of the Act and t hp application for eviction having not been made by the Railway Administration as defined in Section 3 (6) of the Indian Railways Act, it was not maintainable. 4. In the counter-affidavit filed on behalf of respondents 2 and 3, it is stated that by agreement last entered into with the petitioner a licence was granted in favour of the petitioner for carrying on catering business of refreshments at Kishunganj railway station commencing from 1.10.1964 and terminating on 30.9.1967. The relevant parts of the agreement have been included in Annexure 'A'. It is urged by Mr. Bose on behalf of respondents 2 and 3 that no lease was in fact created in favour of the petitioner to carryon the catering business and under the agreement only a licence was issued and since the service rendered by the petitioner was not considered satisfactory, an administrative decision was taken on 3.12.1970 when the petitioner was asked to quit the railway premises by notice dated 22.12.1970 Annexure E). Submission of the learned counsel further was that the petitioner is a railway servant within the meaning of Section 138 of the Act and since the application under Section 138 of the Act was filed for and on behalf of Union of India (Central Government) it would be deemed to have been filed on behalf of the Railway Administration as defined under Section 3(6) of the Act and the petitioner being only a licensee, action under Section 138 of the Act was proper and appropriate. 5. 5. A point was raised in the counter-affidavit to the effect that the learned Sub-divisional Magistrate having acted as a court, the petitioner had remedies available to him in law other than this writ application. Section 435 applies only to criminal court and the test is not the nature of the proceedings before the court at a given time but the nature of the court by which that proceeding is held and the Magistrate acting in his executive capacity is not a court. When a Magistrate though appointed under the Criminal Procedure Code does not act as such Magistrate but acts under the special power conferred by the special Act, it does not itself constitute him a criminal court (as in the instant case) and his action is not that of a criminal court revisable under Section 435 Criminal Procedure Code. Reference may usefully be made in this connection to the case of (1) Cantonment Board, Ambala V. Pyare Lal (A.I.R. 1966 Supreme Court 108). In this appeal by special leave to the Supreme Court a question was raised for the first time that the Magistrate acting under Section 259 of the Cantonment Act (1924) is a persona-designate and therefore his ORDER :is not revisable under Section 435 or 439 of the Code of Criminal Procedure and the Sessions Judge and the High Court had no jurisdiction under this provision to interfere with such ORDER :, the Supreme Court did not allow this contention to be raised at that stage and observed thus: "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 Hen at this late stage. But we are of the opinion that though the High Court may not have jurisdiction to interfere under Sections 435 and 439 of the Code of Criminal Procedure it could certainly interfere with the ORDER :of the Magistrate under Article 227 of the Constitution." In my opinion the writ application filed is perfectly maintainable. 6. But we are of the opinion that though the High Court may not have jurisdiction to interfere under Sections 435 and 439 of the Code of Criminal Procedure it could certainly interfere with the ORDER :of the Magistrate under Article 227 of the Constitution." In my opinion the writ application filed is perfectly maintainable. 6. Section 138 of the Indian Railways Act provides that if a railway servant is discharged or suspended from his office or dies, absconds or absents himself and he or his wife or widow, or any of his family or representatives, refuses or neglects after notice in writing for that purpose, to deliver up to the railway administration, or to a person appointed by the railway administration in this behalf any station, dwelling house, office or other matters, belonging to the railway administration and in the possession or custody of such railway servant at the occurrence of any such event as aforesaid (any Presidency Magistrate or Magistrate of the First Class) may, on application made by or on behalf of the railway administration, ORDER :any police officer, with proper assistance, to enter - upon the building and remove any person found therein and take possession thereof or, to take possession of the books, papers or other matters, and to deliver the same to the railway administration or a person appointed by the railway administration in that behalf. 7. The contention of Mr. B. C. Ghose, appearing for the petitioner has been that the section contemplates the application to be made by or on behalf of the rail way administration and Section 3 (6) of the Act provides that "Railway Administration" or "Administration" in the case of railway administered by Government means the Manager of the railway and includes the Government. The application under Section 138 of the Act in the instant case was filed by the Deputy Chief Commercial Superintendent and the contention on behalf of the respondents is that the application having been filed for and on behalf of the Union of India (Central Government) it would be deemed to have been filed on behalf of the Railway Administration as defined in Section 3 (6) of the Act. The point was agitated before the Sub-divisional Magistrate as will appear from the impugned ORDER :, Annexure 2' wherein he writes to say that he looked into the Railway Establishment Code, according to which the Deputy Chief Commercial Superintendent is one of the Heads of the Offices and is competent to act on behalf of the railway administration. The learned Magistrate does not refer to the particular provision of the Railway Establishment Code to be looked into for the purpose. The Code has been produced before us and Appendix XXXVIII of the Code, Vol II, issued by the Ministry of Railways, Government of India mentions the list of officers declared to be Heads of Departments and serial no. 4 of the list mentions the Chief Commercial Superintendent as such and the Deputy Chief Commercial Superintendent is nowhere in this list as one of the Heads of the Offices and the learned Magistrate was therefore incorrect to take the view that he has taken in the matter. It is also not disputed that the application under Section 138 of the Act in the instant case was filed by the Deputy Chief Commercial Superintendent but apparently under the rules he was not the person authorised to make such an application. It was not necessary for the Magistrate to refer to the Code in this connection when Section 138 itself or read with Section 3(6) of the Act is clear and specific. He could refer to the terms in the agreement if there was any but he has not done so evidently because the agreement was not before him. The agreement too, it is not disputed, does not also so authorise the Deputy Chief Commercial Superintendent. Clause 46 of the agreement referred to in para 11 of the rejoinder petition to the counter-affidavit of the respondents, the correctness of which has not been challenged runs thus: "Subject as otherwise provided in this contract all notices to be given on behalf of the Railway Administration and all other actions to be taken on behalf of the Railway Administration may be given or taken on behalf d the Railway Administration by the Chief Commercial Superintendent, Northeast Frontier Rly., Pandu." Under the terms of the agreement therefore the proper person to file the application under Section 138 of the Act was the Chief Commercial Superintendent. Reference to Annexure 'G' indicates that the appeal against the ORDER :of injunction passed by the Munsif 2nd. Court, Kishunganj, was filed by the Chief Commercial Superintendent, N. E. Railway as was necessary. The contention of Mr. Ghose therefore must be upheld that the Deputy Chief Commercial Superintendent was not competed to file an application under Section 138 of the Indian Railways Act on the basis of which the impugned ORDER :was passed by the learned Magistrate on 27.3.1971 (Annexure 2) and on this ground alone the ORDER :has to be set aside as being without jurisdiction. 8. Coming now to the second sub-mission of Mr. Ghose the jurisdiction under Section 138 of the Act comes only when the person concerned is a (railway servant' discharged or suspended from his office or dies, absconds or absents himself and he or his wife or widow or any of his family or representatives refuses or neglects after notice in writing for that purpose to deliver up to the Railway Administration or to a person appointed by the Railway Administration in this behalf in station, dwelling house belonging to the Railway Administration. The question is whether the petitioner comes within the definition of 'railway servant' as provided by Section 3(7) of the Act. It says that "railway servant” means any person employed by the Railway Administration in connection with the service of the railway. Section 148 of the Act is relevant in this connection. It provides matter supplemented to the definition of "railway" and "railway servant" and Sub-section (2) of this section provides that for the purpose of Sections 5, 21 etc. and 138, the expression "railway servant" includes a person employed upon Railway in connection with the service thereof by a person fulfilling a contract with the Railway Administration. The above clause therefore makes provision for a case where a person is employed by another person entering into contract with a railway to do or execute certain work. This clause of Section 148 has therefore no direct application for a definite finding that the petitioner-railway contractor is a railway servant within the meaning of the Act. The above clause therefore makes provision for a case where a person is employed by another person entering into contract with a railway to do or execute certain work. This clause of Section 148 has therefore no direct application for a definite finding that the petitioner-railway contractor is a railway servant within the meaning of the Act. Learned counsel for the respondents relied on a number of decisions in this connection in support of his contention that a person who contracts with the railway to perform certain service on his behalf can be said to be employed by the railway to do that service and he comes within the definition of Section 3(7) of the Railways Act. In the case of (2) S. L. Kapoor V. Emperor (A. I. R 1937 Lahore 547) the view taken was that where by agreement with the contractor of the Refreshment Room the Railway Administration both overlooks and directs him in the performance of his work, the contractor must be deemed to be a rail way servant and not an independent contractor and the termination of his services by the railway under Clause 2l of the agreement amounted to discharge within the meaning of Section 138 of the Act. Blacker, J., took the above view on a consideration of the different clauses of the agreement that were before the court that the petitioner S. L. Kapoor must be deemed to have been a servant of the railways and not an independent contractor. It was held that the test to determine whether the person is an employee or an independent contractor is whether or not the employer retains the power not only of directing what work has to be done but also controlling the manner of doing the work. In the case of (3) Ratan Lal Majumdar V. Alfred Ernest-Young (A. I. R 1959 Calcutta 64) it was held that a Tea Stall contractor at a Railway Station and not his servant can be regarded as a railway servant within the meaning of Sections 138 and 148(2) of the Railway Act. Mr. In the case of (3) Ratan Lal Majumdar V. Alfred Ernest-Young (A. I. R 1959 Calcutta 64) it was held that a Tea Stall contractor at a Railway Station and not his servant can be regarded as a railway servant within the meaning of Sections 138 and 148(2) of the Railway Act. Mr. Bose referred to the decision in support of his contention that the petitioner being only a licensee is a railway servant within the meaning of the Act and if there was any wrong termination of his contract he has his remedy in the civil court as the remedy under Section 138 is not dependent upon the validity or otherwise of the discharge or suspension of the railway servant concerned. It is not necessary to refer to the definition of the word 'licensee' as laid down in Section 52 of the Indian Easement Act or to Section 105 of the Transfer of Property Act which defines 'Lease' as the agreement itself is not before the court. In the Calcutta case' the question of payment of rent was not there and no question regarding the status of the contractor vis-a-vis the Railway Administration on reference to any of the terms of the agreement was raised or decided. I do not agree with Mr. Bose that on the statutory interpretation of Sections 138 and 148(2) as put forward by him it would not be necessary to interpret the agreement. Learned counsel for the respondents concedes that to determine the relationship between the parties the intention has to be gathered from the agreement itself, and it is not possible unless the whole of agreement is looked into. In the present case it was therefore incumbent upon the Magistrate to look into the agreement to determine the correct status of the petitioner namely whether he was a railway servant or a person employed by the railway or upon the railway within the meaning of Section 3(7) read with Section 148 (2) of the Act or merely a lessee-cum-tenant from month to month in respect of the railway premises as is the petitioner's contention. In fact the Magistrate did not apply his mind to this aspect of the matter before assuming his jurisdiction under Section 138 of the Act. In fact the Magistrate did not apply his mind to this aspect of the matter before assuming his jurisdiction under Section 138 of the Act. He was not competent to pass an ORDER :under Section 138 without looking into the agreement and without examining the ingredients in the agreement that could constitute the fact that the petitioner is a railway servant. The petitioner has referred to certain clauses of the agreement in his rejoinder to the counter affidavit of the respondents in support of his contention that he is a contractor lessee-cum-tenant in respect of the Railway Refreshment Room and he is not a railway servant within the meaning of the Act. Learned counsel for the respondents also referred us to a few other clauses of the agreement mentioned in Annexure 'A’ in support of the contention that the petitioner was a mere licensee. It will be useless to refer to them as it would be improper to come to any clear finding by reading portions of the agreement only, detached from their context. Examination of the agreement for the purpose is a question of fact which the authority under Section 138 must determine before deciding to exercise its power under that section. In the case of (4) Nanik Awatrai Chainani V. The Union of India [1970(2) Supreme Court Cases 321) the appellant had, on February 9, 1964 entered into an agreement with the railway administration by means of which he was allotted a Tea Table at Kalol Railway Station. This agreement came into force from May 18, 1964 and subject to the provisions for earlier termination was to remain in force for three years. By a similar agreement dated February 20, 1955 the appellant was allotted a Refreshment stall at the same railway station for a period of three years subject to the provision for earlier termination similar to the first agreement. In both the agreements the appellant was described as the licensee. Under these agreements the terms of which are identical the appellant was to run the two stalls in accordance with the directions of the railway administration. On July 11, 1965 the two stalls were inspected by the Commercial Inspector, irregularities were noticed and the stalls were found to be running not in accordance with the direction of the railway administration. A fine of Rs. 100/- was imposed on him in terms of the agreement. On July 11, 1965 the two stalls were inspected by the Commercial Inspector, irregularities were noticed and the stalls were found to be running not in accordance with the direction of the railway administration. A fine of Rs. 100/- was imposed on him in terms of the agreement. The amount of fine having not been paid a notice was given to the appellant on September 16, 1965 for vacating the railway premises by October 30, 1965. The appellant having failed to vacate the premises the agreements were terminated with effect from November, 1965. The railway administration applied to the Judicial Magistrate, Kalol under Section 138 of the Indian Railways Act for securing possession of the premises. It was not the appellant's case there that he was not the railway servant. Agreements were before the court also. The observation of the Supreme Court relevant for our purpose however was that the relationship of master and servant is characterised by agreement of service, express or implied, and whether or not the given agreement is one of service is a question of fact depending on its terms. Mr. Ghose, learned counsel for the petitioner also relied on another case (5) Dharangdhar Chemical Works Ltd. V. State of Saurashtra (1957 Supreme Court Report 152) in support of his contention that the question whether the relation between the parties was one as between an employer and employee or master and servant is a pure question of fact. 9. For the reasons recorded above the ORDER :passed by the learned Sub divisional Magistrate, Kishunganj under Section 138 of the Indian Railways Act is held to be incompetent and without jurisdiction and it is hereby quashed. WASIUDDIN, J. I agree. Application allowed