1. The petitioner is the owner of a holding situate by the side of the 'long tank' within the Municipality of Narayangunge. In April 1918 he applied for and obtained sanction for the construction of a two-storied building on his holding. After the first storey of the building had nearly reached completion, a notice was served upon him under Section 202 of the Bengal Municipal Act to remove an encroachment alleged to have been made on a portion of the 'long tank.' The petitioner thereupon filed objection under Section 176 of the Act, but it is alleged that the procedure prescribed by Sections 178 and 179 were not followed by the Municipal authorities. The Municipality, however, instituted proceedings against the petitioner under Sections 217 and 218. The latter, among other objections, denied the title of the Municipality to the land upon which the building had been created and denied that he had encroached upon any land of the Municipality. That case was dismissed mainly upon the ground of defeat in the notice served upon the petitioner. The Municipality, thereupon issued fresh notice upon the petitioner and, the latter having failed to comply with the requisition, started proceedings under Section 202 of the Act. The Sub Divisional Magistrate who tried the case found that there was an encroachment of one foot beyond the sanctioned plan upon Municipal land, and directed the removal of the encroachment under Section 202 of the Act. The petitioners thereupon moved this Court and obtained this Rule.
2. It is contended on behalf of the petitioner that the land on which the encroachment is said to have been made is not a drain, sewer or road, and that, therefore, the provisions of Section 202 are inapplicable to the case, even if the land belongs to the Municipality. It is contended, on the other hand, by the opposite party that the 'long tank' is a sewer' and the land encroached upon is part of the sewer. It is not clear, however, whether the land in dispute forms part of the sewer or drain. It is referred to in one passage in the judgment of the Magistrate as Municipal land, but the opposite party relies upon other passages in the judgment as indicating that it forms part of the 'long tank. '
3. Section 202 of the Bengal Municipal Act provides: 'The Commissioners may issue a notice requiring any person to remove -any wall which be may have built or any fence, rail, post or other obstruction or encroachment which he may have erected in or on any road or open drain, sewer or aqueduct...and if such person shall fail to comply with such requisition within eight days of the receipt of the same, the Magistrate may on the application of the Commissioners, order that such obstruction or encroachment be removed, and thereupon the Commissioners may remove any such obstruction or encroachment and the expenses thereby incurred shall be paid by the person who erected the same.' In order, therefore, that the provisions of the section may be applicable it is essential that the wall must have been built or the obstruction or encroachment erected in or on any road or open drain, server or aqueduct. Assuming that the land upon which the encroachment is alleged to have been made forms part of the 'long tank,' it must be shown that it is part of the sewer itself or forms part of its slope, which may be treated as part of the sewer itself.
4. The section gives a summary power to remove a wall or encroachment only where it is erected on a road, drain sewer or aqueduct and it cannot apply to a case where there is a dispute between any person and Municipality with regard to the title to any land. Such disputes must be determined in the ordinary way the Civil Courts and the Municipality cannot avail themselves of the provisions of Section 202 of the Act for pulling down the wall (in the present case the wall of a two-storied building) unless it is shown that the land encroached upon forms part of the sewer itself.
5. It is contended, however, on behalf of the opposite party, that the order of the Magistrate under Section 202 of the Municipal Act is not a Judicial order, and, therefore, cannot be revised by the High Court. Now, Act VI (B.C.) of 1868, Schedule K, Clause (1) provided that 'whoever builds any wall, or erects or sets up any fence, rail post, or other obstruction or encroachment in any public highway, or in or over any open drain, sewer, or aqueduct along the side of any such highway, shall be liable to a fine not exceeding fifty rupees and the Magistrate shall have power to remove any such obstruction or encroachment; and the expense of such removal shall be paid by the person erecting the same; and shall be recoverable from him in the manner provided in Section 83 of this Act.' In the case of Baboo Chunder Narain Singh v. Brojo Bullub Gooie 21 W.R. 391 : 14 B.L.R. 254 a question was raised whether an order of the Magistrate directing the removal of the obstruction was a Judicial act. There was difference of opinion between the learned Judges, Markby and Birch, JJ., and the case was referred to Couch, C.J., who held that the removal of an obstruction by a Magistrate in exercise of the power given to him by Act VI at 1868 (B. C), Schedule K, Clause 1 is not a judicial act, bat an executive or ministerial act, and even the circumstance that a fine is imposed on the person who set up the obstruction does not protest the Magistrate under Act XVIII of 1850 from an action being brought to try the question of such person's right to leave the obstructions there. The learned Chief Justice observed: 'The clause, although it contains two provisions, one for the punishment of the author of the obstruction and the other for the removal of the obstruction, must be looked at as if it was in fast two clauses, one providing for the judicial act of determining who the Offender is and punishing him, and the other for what may be done separately and without any offender being punished, namely, the act of removing the obstruction, which may properly be called an executive or ministerial act.'
6. In the present Bengal Municipal Act (Act III of 1884 B.C.), the question of removal of the encroachment is dealt with in Section 202 separately from the question of penalty for disobedience of the requisition (under Section 202) in Section 218. It is contended on behalf of the opposite party that the matter dealt with under Section 218 is a Judicial act, whereas that under Section 202 is not so. Section 205, however, provides that every order made by the Magistrate under Sections 202, 203, 204 or 233 shall be deemed to be an order made by him in the discharge of his judicial duty, and the Commissioners shall be deemed to be persons bound to execute such order of a Magistrate within the meaning of Act XVIII of 1850 (for the protection of judicial officers). It seems that Section 205 was enacted to meet the difficulty raised in the case referred to above. It is contended, however, on behalf of the opposite party that the section says, 'shall be deemed to be an order by him in the discharge of his judicial duty,' not that it is a judicial proceeding; in other words, the Magistrate shall be treated as acting judicially only for a particular purpose, namely, for his own protection.
7. We do not think that is a reasonable interpretation of the section. The legislature appears to have used the language 'shall be deemed to be an order made by him in the 'discharge of his judicial duty' because, in the case of Baboo Chunder Narain Singh v. Brojo Bullub Gooie 21 W.R. 391 : 14 B.L.R. 254, the learned Chief Justice pointed out that the act of the Magistrate directing the removal of the obstruction is not a judicial act. In the present Act it is expressly seated that the Magistrate shall be deemed to be acting Judicially. More over, if the order is not to be treated as a Judicial act, the party is without any remedy because the Magistrate, according to the warding of the section, will be acting Judicially and, therefore, will be protected by Act XVIII of 1850. (for the protection of Judicial officers) and, at the same time, cannot be revised by the High Court as not being a judicial order.
8. We are accordingly of opinion that the order made under Section 202 is a Judicial proceeding and we have got the power to revise the order of the Magistrate.
9. It may be pointed out that in this case the Magistrate took evidence and held a judicial proceeding before making the order for removal of the wall.
10. The question whether the alleged encroachment was made upon the sewer itself or upon the land which might form part of the bank of the long tank has not been clearly found in the judgment and that is the most important question in deciding the case. We think that the Court should definitely find whether the encroachment has been made upon the slope of the sewer itself, as contended on behalf of the Municipality, or upon land not constituting any sewer or its slope, though the land may form the bank of the 'long tank' as contended on behalf of the petitioner.
11. We accordingly set aside the order complained of, and send the case to the Court below in order that it may come to a definite finding upon the point dealt with above and dispose of the case according to law.