1. Petitioners are tenants of Contonment Board from 1990. They allege that at the time of induction as tenants the Contonment Board charge Pagri™ from them ranging from Rs.50, OOO/- to 1,50lacs. They further submit that Section 4 of the J&K Houses & Shop Rent Control Act was violated by charging Pagri. They further submit that some of them have filed applications u/s 8 under the House and Shops Rent Control Act before the Rent Controller and are pending before the Rent Controller. That inspite of these proceedings being pending, respondent moved the Court of Judicial Magistrate under Section 259, who took cognizance of the matter and issued order on 28.4.1994,15.4,1994 and 13.4.1994 and also issued warrants of recovery against the petitioners.

2. These warrants have been challenged by the petitioners in this petition.

3. In the first instance this Court would like to say that all the petitioners have independent cases, though point of law may be same, yet they have filed only one petition. This practice needs to be checked.

4. The warrants issued against the petitioners under section 259 have been challenged on various grounds which are enumerated below:-

a) That Sub-Judge, City Judge, Munsiff, Judicial Magistrates designated under the Contonment Act, 1924;

b) That the learned Magistrate has not perused any documents or evidence before issuing the warrants;

c) That no opportunity of being heard was afforded to the petitioners before issuing warrants.

d) That the Magistrate had no power under the Central Criminal Procedure Code of 1973 as he was a Magistrate only under the Local Criminal Procedure Code and not under the Central Criminal Procedure Code;

e) That under the States Criminal Procedure Code, Section 32 creates a bar to recover fine exceeding Rs.5000/- as a magistrate is only empowered to impose and recover fine upto Rs.5000/-

5. Objections have been filed and I have heard the learned counsel for the parties.

6. Two arguments have been advanced at the Bar for the consideration of this Court: -

1. Whether it is necessary to designate a Magistrate before he exercise power in an application u/s 259 of the Contonment Act, 1924?

2. Whether a Magistrate who is a Magistrate in terms of the local Criminal Procedure Code can exercise powers on an application made by the Contonment Board in terms of Section 259 of the Contonment Act, 1924?

7. The first contention was made on the strength of a judgment of High Court of Mysore, reported in Sales Tax Cases Vol. 28-1971, titled Mohan lal Prem Chand Vs. Comm. Tax Officer. This is a judgment by a Division Bench. The Division Bench of Mysore High Court held:- while analysing Section 13 Sales Tax Act of Mysore state that the Magistrate who had been empowered to recover the arrears of tax was a persona designate and not as an inferior criminal Court.

8. This matter came before the Supreme Court also in Contonment Board, Ambala Vs. Pyare lal, reported in AIR 1966 SC 108.

9. An application under section 259 was made before the Magistrate who passed order for recovery which was challenged before the Sessions Judge in a revision. The learned Sessions Judge came to the conclusion that the arrears for which the application had been made were not recoverable, therefore, the Magistrate had no jurisdiction to order its recovery. The learned Sessions Judge after arriving to the conclusion made a reference to the High Court. The High Court agreed with the conclusions drawn by the learned Sessions Judge. The matter went in Special leave petition before the Apex Court and for the first time an argument was advanced before the Court that since the Magistrate entertaining an application u/s 259 of the Contonment Act was exercising his powers as a persona designate and was not an inferior court, therefore, the revision before the Sessions Judge and subsequent reference by him to the High Court was without jurisdiction. It was argued before the Supreme Court that since the Magistrate was not exercising any pow

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