A.K. De, J.
1. The second party in a proceeding under Section 133 of the old. Code of Criminal Procedure, 1898 to be hereafter called the Code, is petitioner before me. Ashutosh Sashmal and others, the opposite parties in this rule filed a* mass petition before Revenue Minister of the Government, The said petition was enquired into and a report submitted to the Sub-Divisional Executive Magistrate, Uluberia. Reading that report the learned Sub-Divisional Executive Magistrate has drawn up a proceeding under Section 133 of the Code and has served a copy of his order on the petitioner requiring him to appear before 'himself' on 3-7-1973 and to move to have his order set aside or modified or to show cause why the order shall not be enforced. The petitioner appeared before the said Sub-Divisional Executive Magistrate on 3-7-1973, applied for time and was granted time upto 10-7-1973. The learned Sub-Divisional Executive Magistrate by the same order of that date transferred the case to the file of Sri M.C. Sengupta, a. Magistrate with 2nd Class power, for favour of disposal. On 10-7-1973, the petitioner appeared before the said transferee Magistrate Sri Sengupta and filed show cause. He fixed 25-5-1973 for hearing. On 23-8-1973 he examined four witnesses in-chief. There was no cross-examination of the witnesses that day. He fixed another date for cross-examination. On 15-11-1973 three of the witnesses exa-:mined-in-chief were cross-examined. The remaining fourth witness was cross-examined on 22-1-1973, Arguments were heard on that date and the Magistrate -fixed 8-12-1973 for orders. On that date he has made the following order.
I, therefore, endorse that the order Dated 22-6-1973 of the Sub-Divisional .Magistrate, is made absolute and be enforced and direct 2nd party under Section 144, Criminal Procedure Code (?) to demolish and remove the structure or portion of the structure on plot No. 1526 of Khatian No. 316 within mouza Ajodhya ,J. L. No. 71 adjoining the Hume-pipe towards removal of the obstruction within fifteen days ftom this date and report compliance, failing which it will be .performed and he will be penalised provided under the Act in force.
2. The petitioner moved the Sessions- Judge against that order. The Sessions Judge has rejected that application in the view that the revisional application ijioes not lie before him. He has rejected the petition in limine without going into the merits. The petitioner has moved this Court in the revision under Section 401 of the new Code of Criminal Procedure 1974.
3. To appreciate the contentions umade in this case a short summary of the iacts of the case may be given.
4. Bimala Devi was the owner of M. S. Dag No. 1526. She sold it to the petitioner on 21-5-1968 and put him in possession. The petitioner raised the level of the land and is residing there with his family making a pucca structure on it. Ashutosh Sashmal and others in their ..mass petition stated that there is a public drain to the east of R. S. Dag No' 1526 and that the petitioner has obstructed it 'toy raising pucca structure on its Mohana (mouth). The petitioner in showing cause before Sri Sengupta stated that there is jno public drain and that he has not obstructed it by a construction on its mohana. The learned Sub-Divisional Executive Magistrate has drawn up a proceeding under Section 133 of the Code being satisfied that the petitioner has, by making an unlawful construction, obstructed a public drain (channel) and free flow of water through it from the paddy fields of several Mouzas and has made a conditional order requiring him to remove the said obstruction by demolishing iiis structure. He has shown cause against 'the order.. The learned Magistrate has made an order under Section 137 of the Code making the earlier order of the Sub-Divisional Judicial Magistrate absolute. The procedure adopted by the Magistrate in disposing of the matter is challenged as illegal- contending that it has been made in disregard of the mandatory provisions of the Code. When a proceeding under Section 133 of the Code is drawn up in respect of an alleged obstruction to the public in the use of any channel the Magistrate is required to make two enquiries to determine firstly whether pr net there is existence of a public right in respect of the channel, and secondly, whether or not there has been obstruction caused on /the said channel regarding the use of it by the public. The first enquiry has been enjoined by Sub-section (1) of Section, 139-A and the second enquiry is required to be held under Section 137 or Section 139. In the second enquiry .under Section 137 or 139 the procedure to be adopted is that prescribed for a summons case under Chapter 20 of the Code. In the first enquiry no particular procedure has been prescribed or specified under Section 139-A (1). It is clear on a reading of the Sections 133, 134, 136 and 139-A that a Magistrate has not and cannot commence an enquiry under Section 137 in case of an obstruction in the use of a public' channel before concluding the enquiry under Section 139-A (1) and before recording a conclusion under Sub-section (2) of that section. In the instant caae, the learned Magistrate, Sri Sengupta, has made only one enquiry in which he has taken the evidence of the second party and has, on that, decided both the questions - one comity! under Section 139-A (1) and the other under Section 137. This, it is submitted, has vitiated the entire proceeding and has made the ultimate order illegal. This contention shall be accepted. Before a Magistrate is satisfied after enquiry that there is no reliable evidence in support of the denial of the second party of the existence of the public right in respect of the channel, he cannot proceed to take evidence under Section 137. It is clear that evidence t be given under Section 137 is to come from the party, who alleges obstructioa to the use by the public of the channel. The second party may give evidence disproving the existence of the obstruction only after the first Party has given his 'evidence to prove its existence. The learned Magistrate in the instant case has adopted a procedure, which is not sanctioned by the provisions of the Section 139-A and Section 137, and has made the entire proceeding illegal by not calling upon the first party, first, to prove the existence of the obstruction said to be existing i& respect of the public channel. The departure from the procedure provided by the Code is an illegality and has vitiated the entire proceeding. The1 application Isucceed on this, ground.
5. Another procedural departure has taken away the root of the-jurisdiction of Sri Sengupta, who made the final order, When a proceeding under Section 133 is drawn up, the Magistrate makes an order asking the party to appear before himself or some other Magistrate of .the first Class or 2nd Class at a time and place to be fixed by the order; if he asks the party to appear before him self he has to retain the case with him till the party appears before him and shows cause. In the instant case the Sub-divisional Executive Magistrate who drew up the proceeding asked the petitioner to appear before him, the petitioner appeared befbre him on 3-7-1973 and asked for time to show cause. ' The Sub-divisional Magistrate, even before the petitioner fshpwed cause before him, transferred the case to the file of Sri M, C. Sengupta, Ma-,j$strate 2nd Class for disposal. As this order of transfer was made before cause ivas shown it did not' vest Sri Sengupta 'with jurisdiction to dispose of the matter. The view previously taken by this Court that a proceeding under Section 135 can--not be transferred to another Magistrate in the case of Prankrishna v. Shvamstin-der AIR 1949 Cal 637 : (51 Cri LJ 205) and in the case of Jhatu Charan Das v. Bhanii Charan Das : AIR1956Cal220 (both delivered by Singh J.) has since been dissented from toy two decisions of the Division Bench of this Court in the case of Bardeswari Pro-sad Bhattacharyya v. Rabi Nandan Saha : AIR1956Cal24 and ill the case of Mahadeb v. Adhir Kumar : AIR1970Cal169 . 'With respect, I follow the latest Division Bench decision in : AIR1970Cal169 which followed the -decision in : AIR1956Cal24 . R, N. Dutt, J., speaking for the -Court in : AIR1970Cal169 observed, after referring to the two single Bench decisions of this Court mentioned above and the single Bench decision of the Allahabad High Court in Ki-shorilal v. State AIR I960 AH 224 : (1960 Cri LJ 450) and the Bench decision of the Rajasthan High Court in Ram Charan v. Residents of Shahabad , as follows:--
These decisions have no doubt held /that Section 133 of the Code is self-con-' tained and proceedings thereunder can-:bf be subsequently transferred under iSection 192 of the Code. But as we have s'aia the latest Division Bench decision of this Court has held in Bardeshwari's case : AIR1956Cal24 that such transfer is -competent. The learned Magistrate should have followed this decision instead of the Single Bench decisions. We have considered the matter in all its aspects. True, under Section 133 of the Code the Magistrate who draws up the proceeding can no doubt ask the opposite parties to show cause before some other Magistrate , But the terms of Section 133 of the Code caa~ not and should not be construed as ,to exclude the general provisions of tpir sfer contained in Section 192 of the Code. We do not think that this is a matter which should be transferred to a larger Bench for further consideration;- rather we think that we should follow the Bench decision in Bardeshwari's case : AIR1956Cal24
and had held that transfer of the proceedings, under Section 133 after the party has shown cause against the conditional order, before the Magistrate drawing up the proceeding, is not invalid. The law is that a proceeding under Section 133 may be transferred to a Magistrate for disposal only after show cause has been filed by the party proceeded against before (1) the Magistrate who draws up the proceeding or (2) before the Magistrate to whom Magistrate, drawing up the proceeding, has directed the party to appear and show cause. In this case the learned Sub-divisional Executive Magistrate who directed the party to show cause before-him transferred the case before show cause was shown and his order of transfer has been illegal and has not vested Sri M.C. Sengupta, with the jurisdiction to dispose of the proceeding. As Sri Sengupta has disposed of the proceeding by his order dated 8-12-1973 his order wilt be set aside as made without jurisdiction.
6. Mr. Nalin' Cht Banerjee, learned Advocate appeared for the petitioner. has referred to the case of Inasaddar Ali v. Inamullah, reported in (19301 34 Cal WN 228 : (31 Cri LJ 673) and had has submitted that under Section 139-A of the Code of Criminal Procedure* a Magistrate has no jurisdiction to make over fin enquiry as to the existence of a public right of way to some other Magistrate and if such procedure is adopted and a final order made on the report of such Enquiring Magistrate, it will not be a mere irregularity-curable under Section 537 oi the Code. By transferring the proceeding the Sub-divisional Judicial Magistrate made over the enquiry under Section 139-A to Sri M.C. Sengupta and that has vitiated the final order which is based on the report of Sri Sengupta under Section 139-A.
7. The order in question has been challenged on another ground. Provisions of Section 139-A are that where an order is made under Section 133 for the.purpose of preventing obstruction to the public in the use of any channel, the Magistrate shall, at 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 in respect of the said channel and that if the said person so denies, the Magistrate shall before proceeding under Section 137 enquire into the matter. The requirement Is that as soon the party appears before' the Magistrate who has drawn up the proceeding he shall question the party as to whether he denies the existence of the public right. In the instant case the petitioner appeared before, the Magistrate on 3-7-1973. The learned Magistrate did not question him as required by Section 139-A (11, This mandatory provision, not having been complied with, has vitiated the proceeding a^so. Mr. Dilip K. Dutt, learned Advocate appearing for the opposite party submits that the petitioner has denied the existence of the dublic right in his show cause filed on 10-7-1973. That inay be taken as sufficieht compliance with the provisions of Section 139-A (1). His submission is that the denial, if and when made even without being questioned, is compliance with the requirement of Section 139-A (1). I am unable to accept the submission. It is for the Magistrate to question him. It is for hjm to so question the party on his appearance before him. The Magistrate could not have foreseen oh the first date of appearance of the party that he would later deny the existence of the public right by filing a show cause. That show cause might be about the existence or otherwise of the alleged obstruction on the public rtght and might not be about denial of the existence of the 'public right'. The learned Magistrate, having disregarded the provisions of Section 139-A (1) on 3-7-1973, has vitiated the proceeding.
8. The learned Magistrate Sri M.C. Sengupta has held one enquiry afterwhich he has made two conclusions viz.
Therefore, I am satisfied that the denial of public right over the disputed Nala by the second par,ty has been established by legal reliable evidence.' andFinally, I am satisfied beyond any reasonable doubt that the second party has caused obstruction to normal and natural flow of water through the Nala by construction of structure at the mouth fof the Nala which is detrimental to the public interest and need to be removed itowards redress of genuine and public grievance.
9. These two findings have beefa arrived at on the basis of one enquiry. This procedure is against the clear provisions of the Code. Sub-section (1) of Section 139tA is that the Magistrate shall question him 'as to whether he denies the existence on any public right in respect of ike channel and if he does so he shell before proceeding under Section 137 enquire-. into the matter. This is further clear from the language of Sub-section (3) off Section 139-A that a person who has, of being questioned by the Magistrate under Sub-section (1) failed to deny the existence of public right of the nature therein or havinf made such denial has tailed* to adduce reliable evidence in support thereof, shall not in the subsequent proceeding be permitted to make any such denial and that any question in respect of the existence of any such public right? shall not be inquired into by any jury; appointed under Section 138. Sub-section (2) of the section is that the Magistrate shall proceed, as under Section 131 or Section 138, after he finds that there is no reliable evidence in support of the denial of the existence of the public-right by the person. This section clearly bars an enquiry into both the matter* simultaneously. It provides for two enquiries, one as to the existence or otherwise of the public right and the other a* to the obstruction or nuisance or danger one subsequent to the other. Mitter, J., in the case of Bardeshwari. 60 Cal WN' 10, speaking for the Court held that there, is to be proper enquiry must be 'expressly complied with' (sic). I have already indicated that the learned Magistrate has made both the enquiries together and has,. on the evidence given by the petitioner and without taking any evidence-from the side of the first parties or the-persons on whose mass petition proceeding under Section 133 (1) has been started reached his conclusions. This illegality in the procedure has vitiated the entire-proceeding and the ultimate order.
10. Procedure for dealing with proceedings under Section 133 has been exhaustively laid down in Chapter 10 of the Code. No departure or variation from it is possible or permitted. Chapter X of the Code deals with public nuisance. Under Section 133, the first section in the chapter, the Magistrate makes a conditional order. There are six matters in Sub-section (1) in respect of which the conditional order may be made. Of those matters, only two are in respectof public rights. The conditional order, made under Section 133, is served on the person? against whom it is made under Section. 13. That person, on being so served, may adopt any of the three courses mentioned in Section 135. He may perform the act directed by order under Section 133 (l)y He may appear and show cause. He may appear and apply for appointment of a iury. In the two cases in respect of public rights, the Magistrate proceeds under Section 139-A as soon as the person proceeded against makes his appearance before him. He has to enquire as to the denial if the person makes 'any' under Sub-section (1) of Section 139-A on being so questioned. If he admits, the learned Magistrate immediately proceeds to make Ihe enquiry under Section 137 or Section 138 according as he has or has hot ap-iriied for appointment of a jury. In case of denial, the Magistrate first completes the enquiry under Section 139-A. On completion of that enquiry* he either stays his proceedings till the determination by a competent Civil Court or proceeds under Section 137 or Section 138 as t8ie, case may be. After the enquiry under Section 137 or 138 the learned Magistrate makes the conditional order under Section 133 (1) absolute or drops the proceeding. If the person served with the rder under Section 135 fails either to perform the act or to appear to show cause or to apply for apoointment of a 5ury, the Magistrate makes his order absolute and may proceed to try him under rStction 188 of the Indian Penal Code, as hfid ddwn in Section 136. The entire procedure has been laid down in the several ections and a departure, therefrom is not nermitted and if departed from makes the proceeding illegal. The learned Magistrate in this case has disregarded all the requirements of this chapter and his order which has become illegal, cannot, therefore, be allowed to stand.
11. The petitioner has, in his petition, also challenged the correctness of the findings of fact made by the learned Magistrate in his order. It is not necessary to go into those questions in view of the,conclusions' made above, The result is that I make the rule absolute, set aside the order of the learned Magistrate dated 8-12r1973 and direct that he pro-weds with the case from the stage reached on 22-6-1973 in accordance with the observations in the judgment and in accordance with law.
12. Records may be sent back quickly.