Newbould and Ghose, JJ.
1. This is a reference under Section 438 of the Criminal Procedure Code made by the Sessions Judge of Nadia recommending that two orders passed by the District Magistrate under Section 202 of the Bengal Municipal Act, dated the 27th June and 20th October 1924, be set aside.
2. The facts, so far as they are necessary for the decision of this reference, are as follows. By his letter, No. 182, dated the 23rd June 1924, the Vice-Chairman of the Nabadwip Municipality informed the District Magistrate of Nadia that on the 26th April the Commissioners passed a resolution regarding the raising of the northern portion of the Municipal road named Dwarik Babu's Road. Babu Purna Chandra Mukherji, the Chairman of the Municipality, in opposition to this resolution, erected a brick wall the very next morning right across the northern portion of the said road. On the 31st May the Commissioners passed a resolution that a notice under Section 202 of the Bengal Municipal Act might be issued on Babu Purna Chandra Mukherji requiring him to remove the wall. On the 2nd June the Vice-Chairman issued a requisition on Babu Purna Chandra Mukherji under this Section. As he failed to remove the obstruction within the prescribed time, the Magistrate was asked in this letter to pass necessary orders for removal of the encroachment. On receipt of this letter the District Magistrate, by an order, dated 25th June, requested Babu Satis Chandra Bose, Sub-Deputy Collector, to hold a local inquiry and report by the morning of the 27th. The Sub-Deputy Collector held a local enquiry in the presence of the Vice-Chairman, Babu Purna Chandra Mukherji, and others. On receipt of his report the Magistrate, on the 27th June, recorded an order in which he stated that he did not think that an order by him under Section 202 of the Municipal Act was justifiable, and that he did not see his way to order summary removal of the wall. This decision was conveyed to the Municipality by the District Magistrate's letter No. 329 M., dated the 1st July 1924. The Vice-Chairman replied in his letter No. 258, dated the 18th/21st July 1924, asking for re-consideration of the order, and repeated this request in a letter of reminder No. 412, dated the 19th September 1924. On the 20th September the District Magistrate asked his senior Deputy Collector, Babu C. C. Gupta, to hold an inquiry in the presence of parties and report. This officer held an inquiry accordingly and submitted a report, dated the 20th October 1924. On receipt of this report the District Magistrate passed an order, on the same date, directing the Municipality to remove the obstruction Under Section 202 of the Municipal Act and recover costs from Babu Purna Chandra Mukherji.
3. The learned Sessions Judge, on an application made to him by Babu Purna Chandra Mukherji to set aside the order of the 20th October, has recommended that both the order of the 27th June refusing to take action, and the order of the 20th October taking action under Section 202 of the Municipal Act, be set aside on the ground that the District Magistrate could not perform his function under this Section by acting on the report of another Magistrate.
4. We think that the Magistrate's procedure was wrong in the present case, but for a different reason from that stated by the learned Sessions Judge. We agree with him that the decision of a Divisional Bench of this Court in the case of Alaka Mohon Saha v. Chairman of the Naraingunge Municipality (1920) 24 C. W. N. clxviii. is authority for holding that an order made under Section 202 of the Bengal Municipal Act, 1884, is a judicial proceeding, and we have power to revise the order of the Magistrate. But though the Magistrate was bound to act judicially, we do not think he was debarred for that reason only from acting on a report made by a subordinate officer. There is nothing that offends the first principles of justice in such procedure. In a civil suit a Court can issue a commission for a local inquiry to a suitable person, and take action on the report submitted by such a person A Magistrate exercising his power under Section 202 is not engaged in a criminal proceeding. No procedure is prescribed by the section, and we do not think he would be wrong in following, so far as they seem applicable, the provisions of the Code of Civil Procedure. But where the Magistrate was wrong was in passing orders on these reports without first giving the parties concerned an opportunity of being heard.
5. The provisions of Section 202, so far as they are relevant to the present reference, are in the following terms:--'The Commissioners may issue a notice requiring any person to remove any wall which he may have built...on any road...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...be removed and thereupon the Commissioners may remove any such obstruction...and the expenses thereby incurred shall be paid by the person who erected the same.'
6. This Section gives the Municipal Commissioners somewhat drastic powers, and as might be expected the Legislature has provided safeguards against the arbitrary exercise of these powers. One of these safeguards appears to have been overlooked in the present proceedings by all concerned. This is that provided by Section 176, which a reference to Section 175 shows to be applicable to a requisition made by the Commissioners under Section 202. Section 176 gives the person against whom the requisition is made the right to prefer an objection in writing to the Commissioners. This objection has to be heard and disposed of by the Chairman or Vice-Chairman, except in cases where the work will cost more than three thousand rupees, when the objection will be decided by the Commissioners in meeting. under Section 178 the Chairman or Vice-Chairman or the Commissioners at a meeting, as the case may be, shall, after hearing the objection and making any inquiry which they may deem necessary, record an order withdrawing, modifying or making absolute the order against which the objection is preferred. This section further provides that if this order does not withdraw the requisition, further time shall be specified within which it shall be carried out. Section 180 gives the Commissioners power to execute the work or do the thing if it is not done within the time specified in the requisition by the person required to do it. They can act under this Section without applying to the Magistrate under Section 202. But by proceeding under this latter Section, if they obtain an order from the Magistrate, they are protected from a suit in the Civil Court by the provisions of Section 205. Apart from the authority we have cited above we should hold that the Legislature could never have intended to enable a Magistrate to deprive a person of his right to a civil action for acts done by the Commissioners in excess of their powers except by a judicial order passed after hearing the parties concerned.
7. From the papers before us it does not appear that any objection was preferred by Babu Purna Chandra Mukherji Under Section 176. The learned Advocate who appears on his behalf informs us that such an objection was preferred, and that he has a copy of this objection in his brief. If this is so, we do not understand why no objection was taken to the whole proceedings on the ground that this objection has not been determined according to law. The Vice-Chairman, in his letter of the 23rd June, makes no reference to any order under Section 178. But if such an order had been passed, making absolute the original requisition of the 2nd June, it would be necessary for the Vice-Chairman to inform the Magistrate that there had been a failure to comply with the requisition within the time extended by the order absolute.
8. For the above reasons we accept this reference. We hold that the orders passed by the District Magistrate of Nadia both on the 27th June and on the 20th October 1924 were illegal orders, since the Magistrate did not act judicially in that he passed these orders without giving the parties concerned an opportunity of being heard. We set aside these orders, and direct the Magistrate to hear the parties concerned, and after making such inquiry as may be necessary decide whether he should make an order directing that the wall be removed.