LINGARAJA RATH, J. ( 1 ) THE petitioner who figured as opposite party in a proceeding u/ S. 133, Cr. P. C. , has approached this Court assailing an order passed u/ S. 138, Cr. P. C. confirming the conditional order made u/ S. 133 directing his vacation from the Dharmasala in question by 22-7-1988. The facts as appear from the records are that the present petitioner is the brother's son of the opposite party No. 1 Manilal. His grandfather Mamehand constructed the Dharmasala. It is the petitioner's case that being driven out from the family home he has been occupying some rooms in, the Dharmasala since 1976 and has been residing there with his family. A petition was filed u/ S. 133, Cr. P. C. by the opposite party No. 1 alleging the petitioner to be creating nuisance in the Dharmasala, which is dedicated for the use of the general public, by picking up quarrel with the inmates and denying them the use of the facilities like toilets, water tap, stair-case, etc. by locking them. The learned Executive Magistrate passed a conditional order u/s. 133, Cr. P. C. calling upon the petitioner to remove such nuisance by vacating the Dharmasala by 22-7-1988 or to appear before him on that date and show cause as to why the order should not be made final. The petitioner appeared on 7-2-1989 and filed show cause asserting, while admitting that the building was a Dharmasala, that it was a joint family property run by the family management and that he has a right of residence there and he has been residing there since 1976. He also denied to be causing any public nuisance. On that date, the matter was posted for hearing to 28-2-1989. On 28-2-1989 the learned Magistrate adjourned the matter to 21-3-1989 for argument and for evidence of the first party (opposite party No. 1 ). On 23-4- 1989 he examined, cross-examined and discharged the petitioner and posted the matter to 23-5-1989. Ultimately on 21-8-1990 the order was passed to the following effect:-"heard both sides. I am satisfied that the order as originally made on 12-7-1988 shall be made absolute without modification under S. 138, Cr. P. C. Issue notice to OP to vacate Dharmasala within seven days of the receipt of this notice. Inform him that in case of disobedience he will be liable u/s. 188, IPC. I am satisfied that the order as originally made on 12-7-1988 shall be made absolute without modification under S. 138, Cr. P. C. Issue notice to OP to vacate Dharmasala within seven days of the receipt of this notice. Inform him that in case of disobedience he will be liable u/s. 188, IPC. Pronounced in open Court. " ( 2 ) MR. Basu, the learned counsel appearing for the petitioner has urged, assailing the order: (I) The learned Magistrate having obviously passed the order treating the Dharmasala as a public place, he has not afforded opportunity to the petitioner u/ S.137, Cr. P. C. to produce reliable materials in support of his claim; (ii) Section 133, Cr. P. C. does not authorise the learned Magistrate to make an order directing vacation of the premises; and (iii) No enquiry has been made u/ S. 138, Cr. P. C. at all. Mr. Patnaik, the learned counsel appearing for the opposite party No. 1 however strenuously contends adequate opportunity to have been given to the petitioner to produce reliable materials and the enquiry u/ S. 138, Cr. P. C. to have been made and that at any rate no exception can be taken to the order since the petitioner admitted in his very show cause the place to be a public place and as such the learned Magistrate was within his rights to direct his vacation from the premises. Mr. Patnaik also contends that there cannot be a blanket proposition of law that u/ S. 133, Cr. P. C. a vacation of the premises cannot be directed under any circumstances. ( 3 ) AS regards the submission raised by Mr. Basu that it was incumbent upon the learned Magistrate to have afforded opportunity to the petitioner to cross-examine the two witnesses produced by the opposite party no. 1 earlier on the basis of which the conditional order u/s. 133, Cr. P. C. was passed, there does not appear to be much force in it. No doubt the two witnesses had been examined by the learned Magistrate, namely, Satyanarayan Sharma and Gokul Chandra Mohanty, before the order u/ S. 133, Cr. P. C. was passed. But so far as the enquiry contemplated u/s. 137, Cr. P. C. was passed, there does not appear to be much force in it. No doubt the two witnesses had been examined by the learned Magistrate, namely, Satyanarayan Sharma and Gokul Chandra Mohanty, before the order u/ S. 133, Cr. P. C. was passed. But so far as the enquiry contemplated u/s. 137, Cr. P. C. is concerned, it is not a formal enquiry but is one which is intended only to enable the Magistrate to reach the conclusion whether the denial of the public right by the second party (petitioner) is genuine or a spurious one. Dealing with the scope of Ss. 137 and 138, Cr. P. C. 1 had the occasion to deal with the respective scope and nature of enquiry u/ss. 137 and 138 Cr. P. C. in Criminal Revision No. 614 of 1986 (Palau Dehury v. Sarat Chandra Patra) decided on 20-9-1990 where I held as follows"the second part of Chapter X of the Code of Criminal Procedure dealing with public nuisances contemplates, after a conditional order has been passed u/ S. 133 and the second party has appeared in pursuance of the notice, two procedures to be adopted by the Magistrate depending upon the nature of defences taken by the notice. The first is as provided for u/ S. 137 where if the second party appears and denies existence of the public right, the Magistrate is to enquire into the matter and if he finds that there is any reliable evidence to support such denial, he shall stay the proceeding until the matter has been decided by a competent court. If however no such reliable evidence is found in support of the denial, he shall proceed to hold the enquiry as provided for u/s. 138. The second is where the second party appears and shows cause against the conditional order but does not deny existence of the public right, the Magistrate is not required to hold any preliminary enquiry as provided u/ S. 137, but is to hold the enquiry as contemplated u/ S. 138. Ss. 137 and 138 contemplate two different enquiries by the Magistrate. The enquiry u/s. 138 is by way of summary procedure whereas for enquiry u/ S. 137 no specific procedure has been laid down and the only requirement therein is that the Magistrate should see whether there is any reliable evidence in support of denial of the public right. Ss. 137 and 138 contemplate two different enquiries by the Magistrate. The enquiry u/s. 138 is by way of summary procedure whereas for enquiry u/ S. 137 no specific procedure has been laid down and the only requirement therein is that the Magistrate should see whether there is any reliable evidence in support of denial of the public right. The reliable evidence as is referred to in sub-sec. (2) of S. 137 is not reliable proof to be adduced before the Magistrate but only such evidence which the Magistrate thinks reliable. In an enquiry u/ S. 137 the Magistrate is not expected to insist upon proof by the second party of his assertion of denial but only production of such materials or evidence to show prima facie that the assertion is not spurious. It is for such reason that while holding of enquiry u/s. 137 is mandatory once the public right is denied, the enquiry is not to satisfy the rigours of formal enquiry adopting summary procedure, and is made only for the purpose of satisfaction, obviously objective in nature, of the Magistrate that the claim made by the second party is not a merely cooked up one and that he has some reliable basis to support his claim. The Magistrate is not required to give any conclusive finding on such evidence in the enquiry u/s. 137. "since no formal enquiry is contemplated u/s. 137, Cr. P. C. it was not necessary for the Magistrate to have recalled the two witnesses who had been earlier examined and to have afforded opportunity to the petitioner to cross-examine them. Such stage was to come later on only in the event the Magistrate had decided to hold an enquiry u/ S. 138. If on the other hand the petitioner would have been able to produce reliable materials before the Magistrate to come to the conclusion that his denial of public right was bona fide, he could have stayed the proceeding until the matter was decided by a competent court of law. Admittedly, neither the order passed on 7-2-1989 nor the order passed on 28-2-1989 shows an opportunity to have been given to the petitioner to produce materials in his possession to support his plea. The submission of Mr. Admittedly, neither the order passed on 7-2-1989 nor the order passed on 28-2-1989 shows an opportunity to have been given to the petitioner to produce materials in his possession to support his plea. The submission of Mr. Patnaik that there was an admission of the petitioner that the place was a public and hence no such opportunity was further necessary is one which is not acceptable prima facie as it was the very case of the petitioner that though the place was a Dharmasala yet it was joint family property owned by the family and that he had a right to reside there. In such circumstances, it was incumbent upon the learned Magistrate to have afforded opportunity to the petitioner to have placed materials to support the plea and only upon perusal of the same he could have come to the conclusion, if at all, of the claim being a spurious one and calling for a regular enquiry u/s. 138, Cr. P. C. That has not been done. Apart from that, it also appears that no enquiry u/s. 138, Cr. P. C. has at all been made. The learned Magistrate presumably has proceeded on the footing that admittedly the Dharmasala is a public place and hence the petitioner was to vacate. Once the petitioner asserted a right in himself that he had a right to reside in the Dharmasala, it must be taken that he denied an exclusive public right to that extent and it thus became compulsory for the Magistrate to direct an enquiry u/ S. 138, Cr. P. C. Instead a cryptic order was passed confirming the order passed u/ S. 133, Cr. P. C. The order is thus not supportable. ( 4 ) THE other submission made by Mr. Basu has also great force. S. 133, Cr. P. C. in terms empowers the Magistrate to direct removal of the obstructions or the nuisances as enumerated in different clauses of sub-sec. (1) of S. 133. Assertion of a right of residence is not a nuisance and the Magistrate would have no powers to direct a vacation. If while residing, a nuisance is caused otherwise or an obstruction is made otherwise, it is liable to be directed to be removed. (1) of S. 133. Assertion of a right of residence is not a nuisance and the Magistrate would have no powers to direct a vacation. If while residing, a nuisance is caused otherwise or an obstruction is made otherwise, it is liable to be directed to be removed. Even if the Dharmasala is a public place and the petitioner was creating any nuisance or causing any obstruction therein like the ones complained of, the Magistrate would have been perfectly within his powers to direct stopping of such nuisances or removal of such obstructions after following the proper procedure of law, but it was not certainly within his powers to direct vacation of the petitioner. The question was considered by a decision of this Court, (1965) 31 CLT 1033 Keshar Deo v. State of Orissa wherein it was held that it is not within the powers of the Magistrate exercising jurisdiction u/ S. 133, Cr. P. C. to ask a party to vacate a house in his possession or to remove his goods therefrom. All that he is empowered under the law is to pass an order to remove or repair the building. ( 5 ) CONSIDERED from all such aspects, I do not find any force in the submissions raised by Mr. Patnaik, the learned counsel for the opposite party and they must hence be emphatically negatived. ( 6 ) IN the result, the revision is allowed and the impugned order is set aside. Revision allowed.