1. This is a Reference by the learned Additional District Magistrate of Bakarganj recommending that the order made by the learned Sub-Divisional Officer of Patukali should be vacated.
2. It appears that there was a proceeding under Section 133 of the Code of Criminal Procedure with regard to a certain bundh upon the Kashinath Khal. An application for its removal was made by the first party to those proceedings and objections were raised by the second party. A conditional order was drawn up by the Magistrate and a jury was appointed and they made certain suggestions which the Magistrate accepted with regard to the form of the order, passing an order in this form on the 12th of October, 1923: ' The conditional order of removing the bundh is therefore made absolute with this modification that the bundh be reconstructed from Agrahayan of each year and removed again at the end of Chaitra at the cost of both parties equally in future.'
3. A Reference questioning the legality of this order was submitted to this Court and the learned Judges disposed of it in these terms: ' As the Additional Magistrate points out, this is not an order which could be made under Section 133 and we accordingly accept the Reference but we direct that the matter should go back to the Sub-Divisional Officer for his consideration and we point out to him that it will be open to him under Section 133 to make an order for the removal of the offending bundh during certain months in the year.' When the record reached the Sub-Divisional Officer he drew up fresh proceedings; but without empanelling a fresh jury, ho made the following order: 'The majority of the jurors found the conditional order reasonable and proper with the modification that the bundh be removed for six months of the year from Baisakh to Aswin both inclusive. I accept the modification and with this modification make the order absolute. Issue notice on the second party to remove the bundh on the Kashinath Khal from the first of Baisakh or within a week of the service of the notice whichever is later informing them that in the case of disobedience they will be liable to the penalty provided by Section 188, Indian Penal Code.'
4. The learned Additional District Magistrate has pointed out in his letter of reference that the 'present order is absolutely impracticable.' He says: ' The appellants will have to destroy and re-erect the bundh every year for the good of Use 1st party. This I submit is not justice. Moreover this bundh has been in existence for twenty years and the bundhs which have been erected by the other party and have altered the drainage have only been in existence a few years.'
5. What we have to consider is whether the order made by the learned Sub-Divisional Officer can be supported and we think it is plain that it cannot be supported.
6. The verdict of the jury finding the conditional order reasonable was accepted by the Sub-Divisional Magistrate presumably on the supposition that he had the power of ordering the reconstruction of the bundh under Section 133. It is evident, however, that under Section 133, Clause (2) it is only the power to order the removal of an obstruction which is given him. There is no provision for the re-construction of a bundh which has once been removed under this section. It seems, therefore, not improbable that if the jury bad known that the modification which they suggested and which was accepted by the Magistrate was in itself ultra vires they would not have returned the verdict which they did. They might very well have said that if the Magistrate has no power to order the reconstruction of the bundh, the bundh bad better remain where it was; and in fact it appears from the verdict that one of the jurors actually took that view.
7. Then again the learned Sub-Divisional Officer's order was founded not upon the entire verdict of the jury but only upon a part of it. Their verdict provided, firstly, for the removal of the bundh and, secondly for its re-construction. The Magistrate's order, however, was limited only to the removal of the obstruction. I do not think he was entitled to split up the verdict so as to give himself jurisdiction to deal with the matter under Section 133.
8. There is a further point with regard to the question of costs. Two of the jurors were of opinion that the costs of removal and reconstruction should be borne by the petitioner. One juror thought that the question of costs did not arise and two of the jurors said that they had no opinion. The learned Sub-Divisional Magistrate (thought that the cost should be borne equally by both parties. Here, again, there is the difficulty that there is no provision in this Chapter (Chapter X) for the payment of costs by any party to the proceeding. It may, therefore, be doubted, whether the jury would have returned the verdict which they did if they had thought that the question of costs would have to be left open. That is a factor which might have been beyond their consideration.
9. The result, therefore, is that we think that this Reference should be accepted and the order of the Sub-Divisional Officer vacated. At the same time we leave it to him and to the parties to take such further proceedings as they may be advised.
10. I agree with the judgment which has ju3t been delivered by my learned brother.
11. The point that weighs with me is that the Sub-Divisional Officer has passed his last order upon a part of the finding of the jury which was given at the beginning of the proceedings. It is not clear to me that the jury would have come to a conclusion that the bundh should be removed, unless they had felt themselves entitled to add the conditions which were embodied in the first order. My learned brother has pointed out that those conditions are not within the purview of Section 133.
12. Therefore, it appears to me that the learned Sub-Divisional Officer ought not to have accepted a part only of the finding of the jury as a basis of his second order.
13. For these reasons I agree with my learned brother that the Reference should be accepted, the order of the learned Sub-Divisional officer must be set aside and the matter remanded; and, it should be left to the parties, and the Sub-Divisional Officer to take such further proceedings as they may be advised.