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2013 DIGILAW 585 (UTT)

Cantonment Board, Ranikhet, Almora v. Bablu

2013-09-09

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. Since the aforesaid applications under Section 482 Cr. P.C. arise out of the same facts and the law governing the field is also the same, therefore, they are being decided by this common judgment and order. C-482 Petition No. 382 of 2010 Cantonment Board, Ranikhet vs. Bablu will be the leading case. 2. The applicants imposed fine upon the respondent alleging pig nuisance. The applicant served notices upon the respondents to deposit the amount of fine which was imposed by the applicant. The respondents did not do so. The applicant moved the applications under Sections 324 of the Cantonments Act, 2006 (hereinafter referred to as ‘the Act’) for realization of the fine. The said applications of the applicant were allowed by the Judicial Magistrate, Ranikhet vide orders dated 18.01.2010. Aggrieved against the same, criminal revisions were filed by the revisionists (respondents herein). Criminal revisions were allowed. Orders dated 18.01.2010 were set aside vide impugned judgments and orders dated 02.03.2010. Aggrieved against the impugned judgments and orders, present Applications under Section 482 Cr. P.C were filed by the applicants. 3. Learned Judicial Magistrate took the view that the Cantonment Board was empowered under Section 64 (1) (xxxiii) of the Act to impose fine upon the respondents, who refused to remove piggeries despite service of notices upon them by the applicant. Learned Judicial Magistrate also took the view that the applicants were empowered to do so under Section 324 (1) of the Act. The view taken by learned Judicial Magistrate was based upon the wrong premise, in as much as, Section 64 of the Act dealt with “Discretionary Functions of Board” and sub-clause (xxxiii) of sub-Section (1) of Section 64 dealt with “constructing and managing garages, sheds and stands for vehicles and cattle sheds”. Section 64 of the Act, therefore, does not empower the Cantonment Board to levy fine. 4. Section 324 of the Act deals with “Method of recovery”. It will be useful to reproduce the same for the sake of properly elucidating the controversy in hand: “324. Section 64 of the Act, therefore, does not empower the Cantonment Board to levy fine. 4. Section 324 of the Act deals with “Method of recovery”. It will be useful to reproduce the same for the sake of properly elucidating the controversy in hand: “324. Method of recovery.- (1) Notwithstanding anything elsewhere contained in this Act arrears of any tax, and any other money recoverable, including rent on land and buildings due or damages and fine due under leases or licences executed by or in favour of a Board or the Defence Estates Officer under this Act or the rules made thereunder may be recovered together with the cost of recovery either by suit or on application to a Judicial Magistrate 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, either by the distress and sale of movable property of such person, or by the attachment and sale of immovable property of that person, which is within the limits of the jurisdiction of such Judicial Magistrate, or by both these methods, and shall, if payable by the owner of any property as such, be a charge on the property until paid: Provided that the tools of artisans, growing crops upto the value of five thousand rupees and implements and cattle used for the purposes of agriculture shall be exempt from such distress or sale. (2) An application to a Judicial Magistrate under sub- section (1) shall be in writing and shall be signed by the President or Vice- President of the Board or by the Chief Executive Officer or the Defence Estates Officer or the Officer Commanding the Station or any other officer authorised by any of these officers, but shall not require to be personally presented. (3) Upon receiving the application, the Judicial Magistrate referred to in sub- section (1) may take action for the recovery of the amount of tax, rent or money from the person specified in the application as if such amount were a fine recoverable under a sentence passed by him and the provisions of section 421 and 422 of the Code of Criminal Procedure, 1973 , shall, so far as may be, apply to the recovery of such amount: Provided that the recovery of no such amount shall be made by the arrest or detention in prison of the said person.” 5. It therefore follows that an application to a Judicial Magistrate having jurisdiction in the cantonment or in any place where the person from whom such tax, rent or money is recoverable, may be given under Section 324 (1) of the Act. The same relates to arrears of any tax and any other money recoverable, including rent on land and buildings due or damages and fine due in leases or licenses executed by or in favour of a Board. Firstly, the Cantonments Board has no power to impose fine on any person and secondly, if the Cantonment Board has imposed such a fine, a Judicial Magistrate has no authority to direct for realisation of such a fine. If the Cantonment Board has imposed such a fine, it has acted without authority. If the Judicial Magistrate, on the application of the Cantonment Board directed realisation of such fine, the same also acted Sans authority. Any local authority, be it Cantonment Board or any other establishment, is not supposed to act like a judicial authority. The Cantonment Board is within its competence to move an application to a Judicial Magistrate having jurisdiction to realise the arrears of any text, and any other money recoverable, including rent on land and buildings due or damages and fine due under leases or licenses executed by or in favour of a Board, and not otherwise. 6. Learned revision court therefore, rightly held that Cantonment Board had no authority to impose fine for alleged violation by the respondents. The Board had-however, option to file the Complaint before the Judicial Magistrate under Section 284 and 289 of the Act for pending the respondents. Section 64 (1) xxxiii of the Act operates in different filed. 6. Learned revision court therefore, rightly held that Cantonment Board had no authority to impose fine for alleged violation by the respondents. The Board had-however, option to file the Complaint before the Judicial Magistrate under Section 284 and 289 of the Act for pending the respondents. Section 64 (1) xxxiii of the Act operates in different filed. Section 324 of the Act was misconstrued by learned Judicial Magistrate while allowing the applications of the Applicants. 7. Sub-section (1) of Section 284 of the Act provides that no-person shall, without the permission in writing of the Chief Executive Officer, bring into a cantonment any animal intended for human consumption, or the flesh of any animal slaughtered outside the cantonment otherwise than in a slaughter–house maintained by the Central Government or the state Government or the Board. Sub-section (3) of Section 284 of the Act provides that whoever contravenes the provisions of sub-section (1) shall the punishable with fine which may extent to two thousand five hundred rupees. 8. Section 331of the Act dealt with ‘Prosecutions’ and says that save as otherwise expressly provided in this Act, no court shall proceed to the trial of any offence made punishable by or under this Act, other than an offence specified in Schedule IV, except on the complaint of, or upon information received from the Board concerned or a person authorised by the Board by a general or special order in this behalf. It therefore, follows that Cantonment Board is required to file a complaint in the Court of Judicial Magistrate having jurisdiction. Section 331 spares the offences specified in Schedule iv (cases in which police may arrest without warrant). Section 314 of the Act empowers the police force employees in a cantonment to arrest without warrant. It therefore follows that the Cantonment Board ought to have filed complaint in the Court of Judicial Magistrate for penalising the respondents for creating pig nuisance and for non-removal of piggeries despite the service of notices upon them under Sections 157, 284 and 289 of the Act. The only course left to the applicant was to file complaints against the respondents under Sections 284 and 289 of the Act for penalising the respondents for alleged violation. Learned Revision Court has already granted liberty to the Cantonment Board to file complaints against the respondents and according to law. 9. The only course left to the applicant was to file complaints against the respondents under Sections 284 and 289 of the Act for penalising the respondents for alleged violation. Learned Revision Court has already granted liberty to the Cantonment Board to file complaints against the respondents and according to law. 9. There is no illegality in the impugned orders passed by the Revision Court. No interference is called for in the impugned Judgments and Orders dated 02.03.2010. 10. Applications under Section 482 Cr. P.C. are accordingly dismissed with liberty to the applicant Board to file complaints against the respondents according to law, if the Board is so advised. (All the Stay Vacation Applications stand disposed of).