NAWAL KISHORE PRASAD Vs. JAMUNA DUBEY

JUDGEMENT

(1.) On the basis of a petition filed by the first party petitioners to the effect that the opposite party had encroached upon a rasta on plot No. 802, the subdivisional Magistrate deputed an amin to make measurements and to report. The amin reported that encroachment had been made on the public path. Thereupon, the Magistrate passed a conditional order under Section 133 of the Code ot Criminal Procedure, directing the opposite party to remove the encroachment or to show cause. When the opposite party appeared, they stated that the amin's report was collusive, and that a report should be called for from the Anchal Adhikari, Nautan. The subdivisional Magistrate called for such a report, and the Anohal Adhikari reported that the amin was alleged to have been in collusion with the first party and that, therefore, a technical man like a pleader commissioner should bo appointed to measure the land and to make a report. The subdivisional Magistrate directed the first party to deposit the cost of a pleader commissioner. The cost was not deposited, and, on the 24th May, 1968, the Subdivisional Magistrate passed an order as follows;

(2.) In the first place, it may be noted that the learned Magistrate is wrong in saying that the Anchal Adhikari had reported as a fact that the amin's report was frivolous, perfunctory and collusive. All that the Anchal Adhikari had stated in his report was that such was the allegation,

(3.) In the second place, the procedure followed by the learned Magistrate is quite illegal. He has to satisfy himself, before passing a conditional order under Section 133, that action under any of the clauses of that section is necessary. Once he has passed the conditional order, it is for the opposite party to show cause. If the opposite party denies the existence of any public right in respect of the way, river, channel or place, the Magistrate has to proceed under Section 139A. If the Magistrate then finds reliable evidence in support of the denial, he has to stay his hands until the matter of the existence of the right has been decided by a competent Civil Court. If he is not satisfied that there is reliable evidence in support of the denial, the procedure laid down in Section 137 or 138 has to be followed. There is no provision which entitles the Magistrate, after once he has passed a conditional order under Section 133, to make further inquiry in order to be satisfied whether action under any of the clauses of Section 133 is necessary. That is exactly what he wished to do in this case. In my opinion, therefore, it was illegal for the Magistrate to direct the first party petitioners to deposit the cost of a pleader commissioner. If the first party intended to get a commission issued to a survey knowing pleader in order to adduce his report and evidence in support of their case, that would have been a different matter. In such a case, the Magistrate could have called upon the first party to deposit the cost of the pleader commissioner. As it is, the first party did not wish to take out a commission for measurement of the land by a survey knowing pleader commissioner. That being so. it is manifest that the learned Magistrate has acted illegally.