M.S. Nesargi, J.
1. In this petition, the petitioners have challenged the order dated 2-1-1971 passed by the Sub-Divisional Magistrate, Chickmagalur Sub Division, Chickmagalur, Under Section 133 of the Code of Criminal Procedure in SI. Cr. Misc. 21/70-71 directing the wells to be thrown open for the public of Koeuvalli village and ordering the petitioners to throw open the wells and to allow water through the pipes as usual for the use of the public.
2. The few facts that have given rise to this petition are as follows: Petitioners were respondents 1 to 3 in the lower court. It appears that by 13-10-1970 the regularly appointed Assistant Commissioner and Sub-Divisional Magistrate, Chickmagalur Sub Division was not on duty and as such, the Tahsildar was acting as in-charge assistant Commissioner, Chickmagalur Sub Division. He received information in regard to the facts in this case and then, he examined two witnesses and found that action Under Section 133 of the Code of Criminal Procedure was warranted and as such, he issued a preliminary order under the said Section. The parties appeared in response to that and in the meanwhile, the regularly appointed Assistant Commissioner and Sub Divisional Magistrate assumed charge of the office. He enquired into the matter. Thereafter, the regularly appointed Sub Divisional Magistrate proceeded on to pass the final order which is now challenged in this petition.
3. The learned Counsel appearing on behalf of the petitioners contended that the preliminary order passed by the Tahsildar who was in-charge Sub Divisional Magistrate on 13-10-1970 is not warranted in law and is without jurisdiction inasmuch as, the said officer was not at all the Sub Divisional Magistrate, and hence had no powers to institute proceedings Under Section 133 of the Code of Criminal Procedure. He placed reliance on a decision of this Court in Kodandaramappa v. State of Mysore (Criminal) Revision Petition No. 493 of 1969, D/- 18-6-1970) (Mys).
In that decision, proceedings Under Section 107 of the Code of Criminal Procedure had been instituted by an in-charge Sub Divisional Magistrate. The in-charge sub divisional Magistrate was the Taluka Magistrate or a Tahsildar. It was argued that such in-charge Sub Divisional Magistrate did not have the powers to institute proceedings Under Section 107 of the Code of Criminal Procedure. this Court held that a Tahsildar placed in additional charge of the duties of the Assistant Commissioner will not attract the benefit of the notification dt. 16th September 1965 by virtue of which all Assistant Commissioners in charge of Revenue Sub Division are appointed as Sub Divisional Magistrates. As such the Tahsildar in charge of the duties of the Assistant Commissioner would not be an Assistant Commissioner in charge of the Revenue Sub Division. It is clear from the above that the contention put forward by the learned Counsel for the petitioners is entitled to succeed.
4. Sri C. B. Motaiah, the learned Advocate appearing on behalf of the respondents urged that in the said decision the provisions of Section 14 (3) of the Mysore Land Revenue Act have not been taken into consideration and a plain reading of Sub-section (3) would show that during the temporary absence of the regularly appointed Assistant Commissioner, a Tahsildar stationed at the headquarters succeeds temporarily to the office of the Assistant Commissioner and is to be deemed an Assistant Commissioner of the Revenue Sub Division under the Act, and that would go to show that the officer who issued the preliminary order in the case on hand was, may be for a short duration, a full fledged Assistant Commissioner and as such, was also a full fledged Sub Divisional Magistrate and, therefore, the preliminary order issued by him would be an order with jurisdiction.
In my opinion this contention does not carry any force. Sub-section (3) of Section 14 of the Mysore Land Revenue Act reads as follows:-
14. Officers to discharge duties during temporary vacancy:-
(1) x x x x(2) If the Assistant Commissioner of a Revenue Sub Division is disabled from performing his duties or is on leave or for any reason vacates his office or dies, the Tahsildar stationed at the head-quarters of the Assistant Commissioner shall, unless other provision is made by the Government, succeed temporarily to his office and shall be deemed to be the Assistant Commissioner, and such successor takes charge of the appointment.
A reading of the above provision makes it abundantly clear that an arrangement is made in order to keep the office running during the temporary absence of a regularly appointed Assistant Commissioner. Care is taken while wording the above provision. It is not stated therein that such a Tahsildar shall be the Assistant Commissioner of the said Revenue Sub Division. The words used are carefully chosen and they are as follows:-
shall be deemed to be the Assistant Commissioner of the Revenue Sub Division.
In my opinion, there is substantial difference between an Assistant Commissioner regularly appointed and a person who is deemed to be an Assistant Commissioner. How I understand the meaning of the words 'deemed to be as' is 'taken to be though not appointed as such'. In view of this distinction I am unable to agree with the contention put forward by the learned Advocate.
In the result it will have to be held that the Tahsildar who was in-charge Assistant Commissioner of the Chickmagalur Sub Division was not at all empowered to institute proceedings Under Section 133 of the Code of Criminal Procedure, and therefore, the preliminary order passed on 13-104970 is not valid in law.
5. The learned Sub Divisional Magistrate has, in the course of his order, looked into this contention put forward as against the said preliminary order and has ultimately dropped the proceedings taken by the in-charge Assistant Commissioner. But strangely, enough, he has proceeded to pass a final order which has been challenged. That goes to show that after dropping the proceedings held by the in-charge Assistant Commissioner, that is, including the preliminary order, the learned Sub Divisional Magistrate has proceeded to pass a final order which would be in my opinion, invalid in the absence of a preliminary order.
A plain reading of Section 133 of the Code of Criminal Procedure and the subsequent provisions thereof goes to show that no final order can be passed unless a preliminary order is passed at the appropriate stage. In view; of these reasons, I am clearly of the opinion that the impugned order cannot be sustained.
6. Sri C. B. Motaiah, the learned Advocate appearing for the respondent vehemently contended that in view of the emergency envisaged by the in-charge Assistant Commissioner while passing the preliminary order in this case, this Court may direct that the final order passed by the learned Sub Divisional Magistrate (which is now challenged in this case and which is held to be unsustainable in law) be treated as a preliminary order Under Section 133 (1) of the Code of Criminal Procedure and the Sub Divisional Magistrate be directed to proceed afresh in regard to further proceedings. I am unable to accede to this request because this Court has found that the final order passed by the learned Sub Divisional Magistrate is unsustainable in law. Moreover, it is not certain whether the final order can be directed to be treated as a preliminary order Under Section 133 (1) of the Code of Criminal Procedure. In my opinion, if the learned Sub Divisional Magistrate thinks that there are good grounds to institute proceedings Under Section 133 of the Code of Criminal Procedure, he-is free to do so according to the provisions of law.
7. In the result, this petition is allowed and the order passed by the learned Sub Divisional Magistrate, Chickmagalur Sub Division, on 2-1-1971 in SI. No. SI. Cr. Mis. 21 of 1970-71 is set aside.