R.S. Bindra, J.C.
1. On 10-6-1966, Chandra Kumar Roy made an application before the Sub-Divisional Magistrate, Agartala, under Section 188 of the Criminal P. C., alleging that a narrow pathway running through the land of Ganga Goala (the petitioner herein) and Birendra Bejoy Majumder in the village of Subhash. nagar, also known as Jirama Daspara, had been under the use of village people, comprising of about 100 families, since 1946, for their normal agricultural and other pursuits ; that that pathway also leads to Development Block Office, the Primary Health Centre, the Co-operative Marketing Society and the Veterinary Hospital in the village, and that Ganga Goala had recently demolished the pathway much to the inconvenience of the residents of the village. It was also alleged that the petitioner had been using the pathway for proceeding to his agricultural lands and that since the day Ganga Goala had demolished it, he found it difficult to take his bullocks from his house to the lands and likewise was the situation with the other members of the village community. Chandra Kumar therefore prayed that necessary steps should be taken to undo the wrong committed by Ganga Goala, which meant in other words the restoration of the pathway.
2. The Sub-Divisional Magistrate forwarded the application of Chandra Kumar to the Officer-in-Charge of the Kotwali police station for enquiry and report. On receipt of report from that Officer, he passed the conditional order on 18th of July 1967, under Section 138 of the Code, directing Ganga Goala to remove the obstruction and to show causa by 28th of July 1967. Simultaneously, the Sub-Divisional Magistrate asked the Officer-in-Charge of the Kotwali police station to 'open' the road temporarily for bringing paddy, under Section 142, Criminal P. C.'.
3. In response to the notice issued to him, Ganga Goala appeared before the Sub-divisional Magistrate on 24-8-1966, when he prayed for time for showing cause against the conditional order. Adjournment was granted to him but Ganga Goala failed to show cause even on the adjourned date and once again prayed for time. The Sub-Divisional Magistrate exhibited indulgence and allowed him no less than nine adjournments for the purpose and the last adjournment was for the date 19.4-1967. However, in the meantime, on 11-4,1967, Ganga Goala presented a revision petition in the Court of the Sessions Judge urging that the proceedings taken against him under Section 138 should be quashed. The revision petition came up for hearing before the Additional Sessions Judge, Shri N.M. Paul, who rejected the same by order dated 6-1-1968. Having felt aggrieved with that order, Ganga Goala filed the instant revision petition in this Court.
4. Shri M. C. Chakraborty appearing for Ganga Goala, has raised two points in support of the claim that the entire proceedings taken by the Sub-divisional Magistrate stand vitiated. Firstly, it is urged that it was obligatory for the Sub-divisional Magistrate, as enjoined by Section 139A of the Code, to question Gangs Goala immediately the latter put in appearance before him as to whether he denied the public right claimed in respect of the pathway in dispute, and ' that since Ganga Goala had not been questioned on that point, the proceedings stand wholly vitiated. The second point raised is that the Officer-in-Charge of the Kotwali police station could be directed to open the pathway only, if Ganga Goala had been asked to do the needful by means of an injunction issued under Section 142 (1) of the Coda and he had failed to comply with the direction given. Shri R.L. Chakraborty, representing Chandra Kumar, has urged, on the other hand, that no irregularity or illegality had been committed by the Sub-divisional Magistrate, that the proceedings taken by him are in accord with the provisions of the law, and that at any rate the revision petition is barred by time,
5. The points that require determination are, (i) whether the Magistrate had violated in any manner the provisions of Section 189A, (ii) whether provisions of Section 142 had been contravened by issuing a directive to the Police Officer for removal of obstruction and (iii) whether the revision petition made in the Court of the Sessions Judge was barred by time.
6. I propose examining the three points seriatim. It is correct that Sub-section (1) of Section 139A prescribes in categorical manner that where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of the public right, and if he does so, the Magistrate shall, before proceeding under Section 187 or Section 138, inquire into that matter, It is not disputed that the provisions of Sub-section (1) are mandatory in nature and their violation vitiates the proceedings. The Magistrate is specifically enjoined not to act either under S.. 137 or Section 188 before enquiring from the person proceeded against if he denies the existence of public right, mentioned in the conditional order. However, since in our case the Magistrate has not proceeded either under Section 137 or Section 138, therefore, it would be unjust to contend that he has infringed the provisions of Sub-section (1} of Section 139A in any manner.
It would have been much better, I agree, if before adjourning the case from time to time at the instance of the present petitioner the Magistrate had put him the question contemplated by that section at the first hearing, Nevertheless, it is not clear how there has been any violation of the statutory provision. Consequently, I repel, the first submission made by Shri M. C. Chakraborty on holding that the Magistrate is not yet late in putting Ganga Goala the statutory question,
7. Sub-section (1) of Section 142 enacts that if a Magistrate, making an order under Section 183, considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may, whether a jury is to be, or has been, appointed or not, issue such an injunction to the person against whom the order was made as is required to obviate or prevent such danger or injury pending the determination of the matter, Sub-section (2) of the same section provides that in default of such person forth. With obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. A plain reading of the two subjections makes it clear that re-course to the step envisaged by Sub-section (2) can be taken only if firstly an injunction is issued under Sub-section (1) to the person against whom the conditional order was made and, secondly, if he had failed to obey the same. In this view of the Legislative directive, the Magistrate cannot act under Sub-section (2) without first issuing an injunction under Sub-section (1). That clearly leads to the conclusion that the Magistrate was legally unjustified in directing the Police Officer to open the road while passing the conditional order itself. The learned Additional Sessions Judge has described, that part of the order as 'highly irregular and illegal.' I agree that it is so. The Calcutta High Court held in the case of Jobed Ali v. The Crown (1948) 52 Cal WN 757, that no action can be taken under Sub-section (2) of Section 142 without first issuing an injunction under Sub-section (1) of that section. With respect I agree with that proposition of law. Therefore, I hold that the direction issued to the Police Officer by the Magistrate was illegal.
8. This brings us to the question of limitation. The direction to the Police Officer was issued on 18-7-1966, the date 'on which the conditional order was made, while the revision application was filed in the Court of the Sessions Judge on 11-4-1967. According to Article 181 of the Limitation Act, 1988. the petitioner could have filed the revision within 90 days from the date of the impugned order. The revision petition was, therefore, hopelessly barred by time. I see no escape from that conclusion. Sub-section (1) of Section 3 of the Limitation Act provides emphatically that, subject to the provisions contained in Sections 4 to 24, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. In face of this statutory injunction, I have no alternative but to hold that the revision petition had been rightly rejected by the learned Additional Sessions Judge as barred by time.
9. However, I feel inclined to interfere under Article 227 of the Constitution with a view to set aside the illegal order issued by the Magistrate directing the Police Officer to restore the pathway temporarily. It is well settled that the High Court can take recourse to the provisions of Article 227 suo motu provided there is an error apparent on the face of record. As held above, the Magistrate had no legal authority to give direction to the Police Officer without first issuing the injunction order under Section 142 (1) requiring the present petitioner Ganga Goala to do the needful and he bad failed compliance. The legal error committed by the Magistrate is too apparent on the record. Hence, I set aside the order directing the Police Officer to restore the pathway temporarily.
10. As a result, I accept the revision petition to the extent that the order issued to the Police Officer is vacated. The other prayers made' in the petition are disallowed. The case is remanded to the Magistrate with the direction that he should proceed further in accordance with the provisions of law contained in Sections 189A and 142 of the Code. He may, in his discretion, proceed against Ganga, Goala for neither complying with the conditional order issued under Section 133 nor showing cause against the same.