SAAD SAOOD JAN. J.-The facts 1Nadlng up to this criminal revision, which has come before us on a reference made by a learned Single Judge of this Court, lie within a narrow compass. The petitioner was an employee of the Flash man's Hotel, Rawal--pindi, and was in connection with his employment provided with residential accommodation within the premises of the hotel.
Sometimes towards the end of 1963 he became involved in a cri--minal case wherein allegations of misappropriation and fraud in respect of his employer's property were made against him. His services were terminated on 1-1-1969 and he was served with a notice to vacate the residential quarter in his possession. On his refusal to surrender the residential quarter, Mr. A. fl. Mail., Manager of the said hotel applied to the Ilaqa Magistrate under Standing Order No. 16 of the West Pakistan industrial and Com--mercial Employment (Standing Orders) Ordinance. 1968, for his eviction Rai Anwar Kalyar, Magistrate, Rawalpindi acting under the said Standing order called upon the petitioner to vacate the premises within 15 days and also directed that in case the petitioner failed to comply with the order of ejectment the officer incharge of the lo: police station should forcibly dispossess him.
2. Against the said order the petitioner filed a revision petition in this Court. This petition came up for hearing before the learned Single Judge before whom an objection was taken on behalf of the respondent that no revision petition lay to the High Court for the order in question had been made by the Magistrate as a persona designata and not as an inferior c3minal Court. A large number of precedents mostly from Indian jurisdictions were cited by the parties both in favour and against the objection. The learned Single Judge was of the view that there was conflict of judicial opinion on the question and that it ought to be resolv--ed by a larger Much Although the learned Single Judge did not formulate the question to be answered by the larger Bench, we take It that the proposition before us 1s if the order of a Magis--trate of the First Class made under Standing Order No. 16, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, is subject to the revisional jurisdiction of the High Court.
3. The revisional powers of the High Court are set out Chapter XXXII of the Code of Criminal Procedure. This chapter consists of eight sections of which only sections-435 and 439 have a bearing on the proposition before us. Section 435 enables the High Court to call for and examine the record of any proceed--ings before any inferior criminal Court situate within its local limits for the purpose of satisfying itself as to the correctness, legality or propriety of any order recorded or passed by such a Court. Section 439 confers upon the High Court certain powers of a Court of appeal as described in sections 423, 426, 427 and 428 of the Code when exercising its revisional jurisdiction. For example under clause(C) of subsection (I) of section 423, a Count of appeal can alter or reverie an order made by a subordinate Court. By virtue of section 439 this power will also be avail--able to the High Court in the exercise of its revisional jurisdiction.
4. A perusal of the various provisions contained in Chapter XXXII of the Code and particularly those of section 435 makes it clear that the revisional powers of the High Court are confined to such proceedings only as have been conducted by or are pending before an inferior criminal Court. Toe answer to the proposition before us, therefore, depends upon the resolution of the question whether a Magistrate when acting under Standing Order No. 16 can be treated as an inferior criminal Court.
5. Standing order No. 16 occurs in the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is expressed ire the following terms t--
(1) Notwithstanding the provisions of any law for the tinge being in fore, including those of tire West Pakistan Urban Rent Restriction Ordinance, 1959 (W. P. Ordinance No. VI of 1959) a workman occupying residential accommodation provid--ed by his employer, Who has resigned or retired, or has been retrenched, discharged or dismissed, or whose services have been terminated, shall vacate such accommodation within a period of two months from the date of his retrenchment, discharge, dismissal or termination of services, as the case may be provided that In case of re- Instatement of the workman, the employer shall be bound to provide him with similar residential accommodation from the date of such re-instatement or pay him per mensem an allowance in lieu thereof at the rate of three times the wages of the last full working day.
(2) If a workman, who has been retrenched, discharged or dismissed, or whose services have been terminated, fails to vacate any residential premises provided by the employer, within the period specified in clause (1), the employer may lodge a complaint with a Magistrate of the first class having jurisdiction in the area where such residential accommodation is located.
(3) The Magistrate on hearing the parties, may, notwithstanding anything contained in any other law for the time being in force, summarily decide -the case and may pass an order of eviction, giving the workman a reasonable time to vacate the premises.
(4) Where a Magistrate passes an order for the eviction of a workman, he may also pass an order directing a Police Officer to evict such workman and any other person occupying through such workman the residential accommodation in respect of which the order of eviction is made, if the workman or such other person fails to vacate the accommodation within the time allowed under Clause (3).
(5) A Police Officer acting under an order of the Magistrate under clause (4), shall notify the occupants of tile premises in question, the contents of the Magistrate's order and his inten--tion to enter on such premises, and shall allow at least two hours' time to the occupants to vacate the premises and shall give all reasonable facilities to the children and female occu--pants, if any, to withdraw there from before applying an before for taking over the possession of such premises.
(6) Where a workman occupying residential accommodation provided to him by the employer dies, the procedure prescribed in this Standing Order shall mutatis mutandis and so tar as applicable, apply, for evicting any person, who was occupying the premises through such workman, and after his death con--tinues to remain in occupation thereof.
A perusal of this Standing Order will show that the power to direct eviction is to be exercised by a Magistrate of the First Class who constitutes, basically, a Court of criminal jurisdiction and this poorer has not been vested in only some specially selected Magistrates but conferred upon of Magistrate of first class who have jurisdiction in the area where the residential accommodation is situate. Besides, during the course of the Proceedings the Magistrate hiss to act judicially; thus, after the receipt of a complaint from, the employer he has to hear the parties, decide the case and then pass orders of eviction. The fact that he has to decide the case summarily does not imply that the procedure before him will not be of a judicial nature. The language of the Standing Order, therefore, favours the view that the intention of the Legislature was to extend the jurisdiction of the Magistrates of the first class rather than to constitute them as a persona designata for the exercise of a special jurisdiction.
6. The only authority which has direct relevance "to the proposition under consideration is reported as Ali Imam v. Ghulam Hussain (1970 Law Notes 285), while holding the order of a v1agistrate under Standing Order No. 16 was not revisable by, the High Court, Muhammad Haleem, J. observed: "Undoubtedly, the Magistrate was not exercising any powers in relation to any proceeding under the Code but pursuant to power conferred section 16k2) of the Ordinance his order, there--fore, was not one under the Code but under that Ordinance. Merely because section 6, Criminal Procedure Code, designates a Magistrate as a Criminal Court, it cannot be said that for the purpose, of exercising the powers conferred on him as a Magis--trate under that Ordinance he can be deemed to be an inferior Criminal Court. He entertains the complaint as a persona designata and not as a criminal Court."
With utmost respect to his Lordship it may be pointed out that nothing turns on the question whether the order of a Magistrate has been passed under the Code of Criminal Procedure or under a special law, or if the language of the special law indicates that the intention of the Legislature was to extend the jurisdiction of A an existing Criminal Court and not to set it up as a special tribu-- nal, an order made under the special law will be revisable by the High Court despite the fact that it has not been made under the Code of Criminal Procedure.
7. In support of his view Muhammad Haleem J., placed reliance upon Alam Bibi v. District Magistrate (PLD 1961 Kar. 29) and Sakhi Muhammad v. Wajid Ail (PLD 1964 Lab. 426). The first mentioned case was with regard to an order of a District Magistrate made under section 13, Sind Prevention of Prostitution Act. It was held that while making the order the District Magistrate acted in an Administrative or executive capacity and not as a criminal Court. This Is not the case here, for, under Standing Order No. 16, a Magistrate of the first class acts in a judicial capacity. In the second mentioned case the power to try certain offences was conferred upon the Industrial Court set up under the Industrial Disputes Ordinance, which by subsection (4) of section. 12 provided that any decision or award of the said Court would be final and not open to question in any manner by or be--fore any judicial or other authority including the High Court and the Supreme Court. It will thus appear that the Ordinance itself and taken away the revisional jurisdiction of the High Court in respect of the orders made by the Industrial Court. As such this authority cannot be cited in support of the much larger proposi--tion that an order made by a criminal Court in exercise of a juris--diction vested upon it by a law other than the Code of Criminal procedure remains outside the revisional jurisdiction of the High Court.
8. In some of the authorities, particularly of the Allahabad High Court, it has been suggested that the order of a Criminal Court under a special law will fall within the revisional jurisdic--tion of the High Court only if it relates to the investigation or trial of offences. This is too narrow a view for there are many proceedings provided by the Code of Criminal Procedure itself, which do not relate to either the investigation or trial of offences. In this context it will be useful to reproduce the observations of the Bombay High Court in Jamshi Govindji Sanghadia v. Emperor (AIR 1946 Bom 533), which was a case under rule 81 (2), Defence of India Rules. While disposing of one of the objections involving the revisional jurisdiction of the High Court Sen, J. observed "It has been contended by the learned Assistant Government Pleader that in a case for revision under section 439 the order com--plained against must come within the scope of the words 'any proceeding before the Criminal Court in section 435 of the Code that the order in question cannot be described either as a' pro--ceedings or as having been passed by a Criminal Court and that, the order must be deemed not to be a judicial but an executive order and as such not revisable by this Court. He has argued that a 'proceeding' within the meaning of section 435 must have some reference to the commission of an offence and that such was not the case here. We are unable to accept this argument. It seems to us that there are some provisions in the Criminal Pro--cedure Code itself, which are not concerned or not necessarily concerned, with the commission or the prevention of an offence, for instance, sections 488, 144 and 133, Cr. P. C. It seems to us obvious that the word 'proceedings' cannot be given such a restrictive significance as contended for by the learned Assistant Government Pleader; a proceeding cannot be said to have any reference, by itself, to the commission or trial of an offence."
9. Most of the cases cited in the referring note which favour the exclusion of the revisional jurisdiction of the high Court relate to statutes where the Magistrates were called upon to perform duties entirely of executive or administrative nature as persona designata and as such these are not relevant to the proposition before us. Thus in the Nizam v. State (AIR 1955 Hyd. 241). While holding that the order of a District Magistrate in directing the Commissioner of Police to hold an inquiry was not revisable by the High Court a Division Bench observed:- "A Magistrate, though vested with powers under the Criminal Procedure Code, may also be vested with certain powers under special Acts as persona designata and in discharge of such duties, he is deemed to exercise executive functions and is not amenable' to the revisional jurisdiction of the High Court under section 435, C. P. C- on the ground that the proceedings were not those of an inferior Criminal Court.
For the same reason the Bombay High Court declined to interfere in the case of Osman Naji Muhammad (AIR 1930 Bom. 468) on the ground that the Chief Presiding Magistrate when exercising powers under section 45, City of Bombay Police Act, 1902, acted as persona designata and not as a criminal Court. The other cases which fall in this category are Secretary of State v.
Govendram (AIR 1930 Sind 162). Manghamal Gianchand v. Emperor (AIR 1939 Sind 340), Ujainshl v.
Emperor (AIR 1946 Bom. 533), Lospken Munici--pality v. Shahabuddin (AIR 1952 Madh Bhr. 48) and Wall Muhammad v. Monik Chand Rasil (AIR 1957 Cal. 221). In all these authorities it was held that as the Magistrate had passed the Impugned order in a ministerial or executive capacity as persona designata he could not be regarded as an inferior criminal Court subject to the revisional jurisdiction of the High Court.
10. It is also not unusual for the Magistrate to be appointed as a Court designata and he conferred with a jurisdiction which is essentially of Civil nature. Moo of these cases relate to taxation matters under laws relative to local government wherein the Magistrate (often, the District Magistrates) were constituted as the appellate or revisional authority. For obvious reasons when exercising such a jurisdiction a Magistrate cannot be regarded as a criminal Court at all and the revisional jurisdiction of the High Court must be regarded to have been excluded by necessary intendment.
Quite a few of the cases cited by the learned Single Judge fall in this category. These are Municipal Board, Amritsar v. Ram Sahai (AIR 1933 All. 738), Karachi Municipality v Jafarji Jayabji (AIR 1927 Sind 23). Madho Das v. Rex (AIR 1949 All. 738) D Monte v. Bandra Borough Municipality (AIR 1950 Bom. 397), Shevapuri Municipality v. Parshadilal (AIR 1952 Madh. Bha. 29) and also possibly Jagesh Pan ley v. Bhuneshmar Pandey (AIR 1953 Pat. 103) in which the relevant facts were mot given. The Bombay High Court in D'Monte's case went of to observe that even if a revision to the High Court was provided by the relevant statute it would lie on the civil side and not on the criminal side.
11. The authorities reported as Banwan Gope v. Emperor (AIR-1943 Pat. 18) and State v. Banwais (AIR 1957 Punj. 88) also mentioned by the learned Single Judge in his order .of reference relate to statutes which had expressly barred the revisional jurisdiction of the High Court. As such these arc not relevant to the point in issue before us.
12. The only authority from the Indian jurisdiction which seems to have some relevant:: to the proposition under consider--ation is reported as B. Krishna v. D. Chenchy teddy (AIR 1919 Andh. Pra.
129). It was a case under section 87, Madras Hindu Religious and Charitable Eadorsements Act, 1951, which empowered a Magistrate to direct the eviction of a person who was in an unauthorised possession of a religious institution or its properties upon an application of a trustee or office holders of the religious institution. The question for consideration was if an order of eviction made by a Magistrate was revisable by the High Court. After a review of the relevant case-law in India the learned Judges, recorded their answer in the affirmative and held that it was a case of enlargement of jurisdiction and not of the setting-up of a person designata so as to take away the revisional jurisdiction of the High Court.
13. For the reasons stated above T -am of the opinion that Stag Order No. 16 only , extends the jurisdiction of the Magistrates of the First Class and any order made under the (said Standing Order has to be regarded as one passed by an inferior criminal Court and subject to the revisional jurisdiction of the High Court. I would therefore, answer the reference in the affirmative.
14. During the coarse of hearing my Lord the Chief Justice informed the parties that instead of sending the record back to the learned Single Judge after answering the reference, this Bench would dispose of the revision petition finally. According the parties addressed their arguments on merits also. To appreciate the only point urged in support of this revision petition it may be stated that the complaint in this case was made by Mr. A. H. Malik. Under Clause (2) of Standing Order No. 16, only an employer can lodge a complaint with a Magistrate of the First Class for the eviction of his ex-employee. The word "employer" has been defined in Clause (c) of section 2 of the Ordinance, and for the purpose of the present case only sub-clause (iii) is relevant. According to this sub- clause the word "employer" includes : - "in any industrial or commercial establishment, any person responsible to the owner for the supervision or control of such establishment"
The Flashman's Hotel was formerly owned by an Indian Company which was declared an enemy firm during the 1965 War. By, a notification, bearing No. III-I-75/65 (2) of 17th September 1965, the Provincial Government declared the said hotel to be an organization to which Rule 181, Defence of Pakistan Rules, applied and handed over its management to the P. I. A. Corporation which in turn appointed Mr. A. H. Malik as the Manager for the said hotel.
15. The status of a person who has been entrusted with the Management of an enemy firm under Rule 181, Defence of Pakistan Rules, has been described in clause (a) of its sub-rule (2) which in the following terms :- "Such person shall be deemed to be acting as an agent of the firm and subject only to such restrictions as the Central Government may impose, shall have in relation to the man--agement of the affairs of the firm all such powers and authority as the firm itself would have if it, were not an enemy firm . . . . . . . ."
It was submitted on behalf of the petitioner that the only person who could be said to be responsible for the supervision and control of the hotel to the true owner, that Is, the Indian Company, was the P. I. A. Corporation and not Mr. A. H. Malik whose position at best was that of an agent's agent. Thus the there was no proper complaint before the Magistrate on the basis of which the order of eviction could be made against the petitioner.
16. This argument Is based on a misunderstanding about the true Import of the provisions of Rule 181, a perusal of which will show that whenever the Central Government or the Provincial Governments (which enjoy delegated powers In this behalf) take over the control and management of an enemy firm, the enemy firm loses all rights to manage or control the carrying on of its trade or business. The person appointed to administer the enemy firm represents it in all matters. Even though he is deemed to be an agent of the enemy firm, yet it is not a case of an ordinary agency for he has all the powers and authority of the firm and is entitled to the management of its affairs to the exclusion of any other person acting or purporting to act on its behalf. Thus, if any question arises about the responsibility to the true owner, it has to be determined with reference to the statutory agent and not with regard to the enemy firm which lies under a state of `suspended animation." It is, therefore, futile on the part of the learned counsel for the petitioner to contend that as Mr. A. H. Malik was not directly responsible to the true owner of the hotel, he was not competent to lodge the complaint. It may also be mentioned that the qualification needed for a person to fall under sub-clause (iii) of clause (c) of section 2 of the Ordinance is that he should be responsible to the owner and not that he should have been 'appointed' by the owner for the supervision and control of his establishment.
17. For the aforesaid reasons this revision petition falls on merits and is hereby dismissed.
ANWARUL-HAQ, C. J.-I agree.
Petition not allowed.